England and Wales High Court (Administrative Court) Decisions

1. MR. LEWIS: May it please you My Lord. In this matter I appear for the applicant. My learned friend Miss Paterson appears for Wakefield Council. It is an application for leave to apply for judicial review of a grant of planning permission by the Council, and relating to B1 use development and ancillary uses on land Newton Bar in Wakefield.

2. My Lord, if I can deal with the date when planning permission was granted in this way; I am going to come back to that. There was a grant made on 16th June 1998 but, subject to a formal statement, the grant was made subject to a section 106 agreement. Subsequent to that, My Lord, on 22nd June 1998, the fact that planning permission had been granted, but not subject the section 106 agreement, was communicated to the applicant, and it will become clear why I emphasise that date in due course. Again, subsequent to 22nd June, My Lord, on 1st July, another planning permission was formally reissued relating to the same development and the same application site, but on 1st July 1998, but without any statement about the existence of a section 106 agreement. I will take Your Lordship to the document in due course, but that latter planning permission is stated expressly to supercede the permission granted on 16th June 98.

3. MR. JUSTICE SULLIVAN: All this goes, as I understand it, to the three months point?

4. MR. LEWIS: Yes, My Lord, and in due course I am going to be addressing Your Lordship at a little length on that. The plan permission granted was outlying with all matters reserves save for access, and again that's a point of significance in this case. My Lord, I have put in a skeleton argument which I hope reached Your Lordship.

5. MR. JUSTICE SULLIVAN: Yes, it did, thank you.

6. MR. LEWIS: I am grateful. And I have referred to the fact that there is a substantial volume of documentation but nevertheless, yes Your Lordship may well have gathered, a considerable number of the exhibits are simply duplicate to each over, even though the documentation stretches to two ring-binders files.

7. MR. JUSTICE SULLIVAN: I did gather that when I was exercising my wrists trying to pick up the enormous volume of paperwork.

8. MR. LEWIS: I am afraid that's in the nature of things, and all parties did exhibit those documents.

9. MR. JUSTICE SULLIVAN: What I did was, I read the references in your skeleton. I have to say that, for the references to the development plan provisions and supplementary guidance and so forth, I rather took them from, I think, it is bundle B, the Council's bundle. I just found it convenient, but there was the officers report and it had got what seemed to me to be pretty much the relevant documents attached to it. Can I mention one other matter - two other matters: the first is your client's affidavit starts off by explaining which is his land and which is other people's land. The copy of the plan that I have got on page 11 of the bundle, CFW one is monochrome. I have assumed that his land is that which is heavy cross-hatching to the south of Redhall Lane. I rather assumed that it is, but my page is monochrome.

10. MR. LEWIS: I am afraid I am in the same position as Your Lordship in relation to that. I had rather hoped that the copy Your Lordship had would be a coloured one. The first matter I was going to address Your Lordship on, I will seek to deal with now if I may.

11. MR. LEWIS: If Your Lordship goes to page 11 in the bundle, which is the ownership plans CFW 1, there is an area to the south of Redhall Lane which seems to have written on it in pencil "16.2 acres". That's the land which belongs to the applicant company, that is to say to Stirling Construction Yorkshire Limited.

12. MR. JUSTICE SULLIVAN: Is that the part which is alongside the A650?

13. MR. LEWIS: Yes. And to the left of that - in the affidavit, the area I have just drawn Your Lordship's attention to, 16.2 acres written on it, is the one which is said to be red hatched. So that is the land owned by Stirling Construction. To the left of that, there is a squarish area, said in the affidavit to be blue hatched. In respect of the that, My Lord, the applicant company has a conditional contract to purchase, as I understand it. Everything to the north of Redhall Lane, which is hatched, and again according to the colour scheme in the early paragraphs of Mr. Webster's affidavit, that would be hatched green. At the time of swearing Mr. Webster's affidavit, it was subject to an option to purchase in favour of Mr. Mackie, whose identity no doubt will be impinged upon Your Lordship's consciousness, according to his affidavit sworn on 7th December.

14. MR. LEWIS: So that's land ownership, My Lord. Did Your Lordship have one other point?

15. MR. JUSTICE SULLIVAN: Yes. I had, in addition to your skeleton argument, I had a preliminary skeleton argument from Miss Paterson which, as I understand, is revised.

16. MISS PATERSON: Yes, it is revised.

17. MR. JUSTICE SULLIVAN: In due course I will catch up with that, but I only had the chance to look at the provisional one. Thank you. That is all by way of background.

18. MR. LEWIS: I am very much obliged for that, My Lord. I had proposed, subject to an indication to the contrary from Your Lordship, to take Your Lordship through what I characterise as the key documentation.

19. MR. JUSTICE SULLIVAN: Yes, that would be helpful.

20. MR. LEWIS: I am obliged for that. Perhaps if Your Lordship could have my skeleton argument open at page 2, where I set out the chronology. In the 1992 - I don't have firm dates for this - but it was at that time that the inquiry into the objection to the Wakefield UDP was going on. Your Lordship can see from page A14, if I can take Your Lordship to that, that is proof of evidence of Mr. Robert Smith, A14.

21. MR. LEWIS: He was not only the applicant's consultant in the UDP, but also Mr. Mackie's. He was giving evidence to the inquiry. Your Lordship can see on page A14 paragraph 1.02, about four or five lines into that paragraph - land originally was designated as open land within the built up area. That was objected to both by Mr. Mackie and the applicant, or applicants. And as Your Lordship can see, at the foot of page 14, paragraph 1.05, Intercity Property Group Limited, which was a company of Mr. Mackie's at that stage, albeit his interest is represented by different corporate entity now, and Stirling Construction which is an applicant company, together owned or controlled the majority of that area which is said to subject to policy, basically the open land designation.

22. Just to pick up these historic points, if Your Lordship turns over the page, this document is copied on both sides, so it does not have a bundle number, but it is page 2 in the proof. Paragraph 1.07: It says: "As a result of those discussions" - it is talking about the withdrawal of those objections - "the result of the discussions I. S. P. Group limited and Stirling Construction Yorkshire limited resolved to co-operate with each other and with Wakefield district and Metropolitan district and the regional health authority in order to establish a co-ordinated approach under which the Council's objectives for special policy area can be carried forward and implemented in a comprehensive balance..." and so on.

23. Just one other point to pick up on this document before leaving it, on page A23, if I may, top of the page. 5.01, I think this is the first reference in the document to illustrative concept plan which Your Lordship I think already has seen: "Illustrative concept plan was prepared by the local planning authority with the agreement of those in our support including the Inner City Council and Stirling Construction Limited". That is just the introduction of that plan. That plan is A30 in the bundle, but certainly the intention was that a spare copy of that should accompany the skeleton argument which I put in or Friday.

24. MR. LEWIS: A3 plan, it is annotated in hand-writing.

25. MR. LEWIS: That is simply the basis of - well, seeking to pick that up now, perhaps, that is the basis on which, as Your Lordship would have seen from the applicant's affidavit, is that his objection to the UDP inquiry - to the UDP, I should say - were withdrawn and that is detailed in correspondence appearing first of all at page 53, My Lord. It may be more convenient to look at A55, because in chronological order it appeared first. A55, which is a letter of 13 October 1992, that is from the Council to Mr. Smith, whose proof of evidence we were just looking at enclosing a copy of the Illustrative Concept Plan showing in broad principles how the land in the above special policy area might be developed, interpreting broadly the terms of the UDP amendment. Now, My Lord, we will come in due course to look at the UDP and we can see in broad terms that that does indicate certain matters. "As I understand it, this plan is likely to be in accordance with your own thought for the site and acceptable to you or your client in terms..... I would be grateful if you can confirm such agreement to the concept plan in writing if possible so that it could put before the Inspector at the UDP hearing in November. In addition I would be grateful if you would indicate in your reply whether in the light of the plan you intend to proceed with the UDP objection which you had lodged.

26. Taking the appropriate steps to seek the Council endorsement of the plan, making access available so that east of the A61 which, as you are aware, is the key" - that is reference to a hotel site which comes back into the picture later on. But perhaps, just to indicate, actually the previous page in the bundle is another copy of the concept plan, if I can ask Your Lordship to look at that, page 54. Your Lordship may be able to see to the north east of the roundabout, which certainly at this stage was envisaged to be the access of the development area. That is now an area for hotel/motel development area. The last paragraph of the letter: "In the event that there is unanimous agreement between those parties with the relevant interest in the land with the concept plan, I shall contact other objectors, generally being local residents, to ascertain that their objections still stand. I look forward to hearing your reply by return, if possible".

27. The reply is at A53 in the bundle. That is the letter from Walker Morris, solicitors, who at that stage were acting for the applicants, dated 23rd October 1992: "We have considered the concept plan with our client and agree...(read to the words)... allows us to appear as a supporter of the plan". That is the basis on which the objection to the UDP was withdrawn. But just to remind Your Lordship, if I may, that in Mr. Webster's very first affidavit, he says expressly that - page A6 of the bundle, page 5 and 6 or Mr. Webster's affidavit - just the remind Your Lordship of that paragraph 5: "Shortly before the public hearing...(read to the words)... comprehensively as a unit". And paragraph 6: "Robert Smith and I attended a number of meetings...(read to the words)... assurances given to me and Mr. Mackie personally". Again, emphasising perhaps the passage at the end of paragraph 5 in particular, Mr. Webster's understanding - and this has not been challenged in point of fact, and you have seem Mr. Mackie has put an affidavit of his own - he has not said that the illustrative plan was not there to show access to the entire site from the roundabout serving the red and green land, without either landowner having to buy access from the other. He says in order, it would seem, that the entire site be developed comprehensively as an unit. I emphasise that.

28. The next chronology is 6th December 1994, that is the adoption of the UDP. I was going to take Your Lordship to page A93 in the applicant's bundle. If Your Lordship has already looked at the UDP in bundle B, I am more than content to have both of them open at the same time just so I can follow it through. But I have marked up my version.

29. MR. JUSTICE SULLIVAN: Oh yes. I didn't know whether there was slight variation, in fact, that I had not picked up on. You were going to refer me to 93?

30. MR. JUSTICE SULLIVAN: Yes. It may be that the version that I have got...

31. MR. LEWIS: It may have been an A315, certainly the type face is different.

32. MR. JUSTICE SULLIVAN: No, it is - yes A315 - sorry, B.

33. MR. JUSTICE SULLIVAN: And B316, there are four requirements, number 3 is the same, but on your page 94, it says "detailed requirements will be specified in supplementary paragraphs prepared by the Council", that does not appear on page 316, and I wonder whether one has an earlier version.

34. MR. LEWIS: I am not sure, I don't know whether Miss Paterson can help.

35. MISS PATERSON: The last sentence of (iv). It is the same sentence, it is located differently on the page.

36. MR. JUSTICE SULLIVAN: It's been reprinted.

37. MISS PATERSON: Yes, that's the explanation.

38. MR. JUSTICE SULLIVAN: The one provided by the planning officer is the adopted one.

39. MR. JUSTICE SULLIVAN: Thank you very much.

40. MR. LEWIS: In any event, My Lord, I think Mr. Ashworth uses exactly that phrase in his affidavit, so nothing would have turned on it even if that sentence had disappeared from the adopted version. So it would seem that it is simply the same text. Self-evidently the type face is different for some reason. My Lord, the passage I was going to take Your Lordship to is about five or six lines from the end of the second main paragraph under the heading for the special policy area land at Snowhill. The paragraph begins "The UDP recognises", it's a sentence which I have quoted in my skeleton argument, it is merely six or seven lines up from the bottom of that longish paragraph: "The Council is utilising the special policy area of concept to achieve a comprehensive and balanced development which recognises the need to cater for a variety of uses which has wide values before the land uses within the special policy area as follows", and it sets matters out. But over the page, My Lord, the particular one I seek to draw Your Lordship's attention to is (iii), "The vehicular access will be via a new round about in the vicinity [it says] of the Redhall Lane intersection with the A650 Wrenthorpe bypass", and I was going to draw Your Lordship's attention to the passage, "detailed requirements as expressed by the planning guidance was prepared by the Council". And as Your Lordship indicated, Your Lordship had looked in this document in bundle B. I will take Your Lordship to that if I may because it follows in chronology. Yes, subject to Mr. Mackie, who had originally made an application on 28th April 1995. Subject to that is the detailed planning guidance.

41. It begins at page B318. I was going the take Your Lordship to page B321, the introduction second last paragraph in the introduction: "The purpose of this strategy document is to build upon the framework created by the unitary development plan" - I seek to emphasise the phrase 'build upon' and 'framework created' - "and set out in more detail the objectives that the Council wishes to see achieved". Again setting out in more detail the objectives the Council wishes to be achieved.

42. Three pages on, on page 324, there is a heading "site development strategy". And I am going to the second paragraph on the left hand side here, My Lord: "Council overall aim for the area" and it's talking about Snowhill and Newton Hill of course - " to produce a comprehensive strategy which satisfactorily accommodates conflicting development pressures on this area while safeguarding those important environmental features for the local residents. The concept plan" - it's a reference back to the plan that Your Lordship and I looked at - "which was submitted to the unitary development plan provides the basis for this". I have just one more reference; It is on page B327, My Lord. The heading for this page is "Snowhill access. Highways: Vehicular access for playing fields business parks for west of the A650 and the motel/hotel site to the east" - again there is reference to the motel/hotel site again - "would be via new the junction in the vicinity of the Redhall Lane intersection with the A650 Wrenthorpe bypass (see plan 4), taking into account the increase" etc.

43. The next paragraph begins: "This will be only access to the bulk of the site". I said that was the last matter. I ought to direct Your Lordship's attention to this document. Even though it is a plan I produced separately for Your Lordship which came with the skeleton argument, on page B337. This is a plan Your Lordship has seen a number of times before. It shows a point of access to the land to the west of the A650, and it will no doubt be pointed out that it says in the rubric that this is the approximate position of the junction, Your Lordship sees that in the legend there. But as Your Lordship would appreciate I shall be relying on the point that Mr. Webster's evidence is quite clear as to what the point of access should be, and as to the reason that choice of point of access was, namely that it would avoid landlocking. Before putting bundle B on one side My Lord, for the present at least, may I just ask Your Lordship to note page B348, again. This is one of Mr. Ashworth's exhibits for the Council, page B348, this is one of Mr. Mackie's application plans.

44. MR. LEWIS: Showing, if Your Lordship has Redhall more or less in the middle of the plan, and north would be to the left, but can Your Lordship see Redhall?

45. MR. LEWIS: It's a small cluster of buildings, that is a listed building access by Redhall Lane. So even though north is to the left of the plan, Your Lordship will see that the access point has come northwards, as I understand from Mr. Ashworth's affidavit, is another hundred yards. And picking this up for convenience at this stage, and equally My Lord it says to the east of the A650, but according to the orientation of this plan, it is "adjoining site designated for hotel use", which appears to be access from the same roundabout that Mr. Mackie has shown on this application plan, although, as Your Lordship may well have gathered, it would seem that the hotel was always envisaged to be accessed from the concept plan roundabout. And indeed that remains the case in so far as that is a virtue of this scheme. There is a reference, if not in Mr. Ashworth's affidavit, the committee report - the fact that Mr. Mackie's application access does afford access to the hold, but it is no different from the original position and that is just as well be achieved by an access further to the south of the A50 in accordance, as I would contend, with the unitary development plan.

46. MR. JUSTICE SULLIVAN: As far as I can see, looking at the parcels, I am trying to work it out: the approximate position of the new junction would be on the plan on page 348, round about where the southern boundary is, it says "adjoining site designated for hotel use" it is round about that point. In fact where the boundary of the application site is extended to include, obviously, the works necessary to the road just about where there is...

47. MR. JUSTICE SULLIVAN: That is the extent to which it is moved.

48. MR. LEWIS: Yes, and I think from Mr. Ashworth's affidavit, that's about a hundred yards. And in the words of the unitary development plan: "In the vicinity of Redhall Lane junction".

49. MR. LEWIS: As I say, that means we can put bundle B on one side for a moment or two at least, because I shall be going back to the committee report. The next item in the chronology is 5th June 1998 which is when the relevant committee of the Council met to consider Mr. Mackie's planning application and, as Your Lordship would have gathered, it is a reference in Mr. Webster's first affidavit at page 7, paragraph 12, there was consideration of the - I will read the paragraph. There is a note of the meeting, which he produces, which is by the partner from Weatherall Green and smith on behalf of the receivers, note of the meeting produced on 5th June 1998 at which the members are minded to approve the Mackie planning application but delegated the question in section 106 agreement to a sub-committee comprising the leader of the Council, the Chairman, deputy Chairman and officers. During the meeting on 5th June 1998 Councillor Croxhall is quoted as saying...(read to the words)... An assurance from Mr. Mackie". Again there are two points there: there is delegation to considering the question under section 106 to this small sub-committee, and there is also the suggestion which I challenge, My Lord, which is that compulsory purchase order procedures could be invoked to assist with any landlocking problems, but I will come on to that in due course.

50. Even though I was saying you can put by bundle B, it may be convenient to look at the committee report now, which is on the 5th June 1998. It begins at bundle B270, My Lord. Halfway down the page, My Lord, Your Lordship can see: "This outline planning application by York Properties was originally for" - and it give a list of commercial uses. I ask Your Lordship to note in the middle of the next paragraph where it says "at Snowhill", second line down, "The means of vehicular access for the proposed site will be from the A650 bypass at the junction with Redhall Lane in accordance with the Council's concept plan submitted to the unit pre-development planning inquiry, and the requirements for revised draft Snowhill development strategy", etc. It says "This strategy was not approved until April 1997". So then, at least, there is this access which is regarded as being in accordance with the concept plan and the development strategy at the junction - nothing about in the vicinity, but at the junction.

51. Then, My Lord, we learn, towards the foot of the page, second last paragraph: "The applicants subsequently submitted an amended plan on 9th November to the following", and it sets out another mix of uses. It says, over the page, about that proposal, My Lord, "The amended plan excluded Council and proposed a different vehicular access towards the northern end of the site. The applicant at that time indicated on the amended application form that approval was being sought for the amended vehicular access. This does not accord with the Council's adopted unitary plan and the requirements of the draft development strategy". I am asking Your Lordship to note that. We do not have a plan as to what that may have involved, and it may be that the access was further north, but certainly that was not regarded as according to the development plan.

52. There is another variation, starting third paragraph: "During December 1995 detailed correspondence exchange relating to the following key issues", and item 2 is vehicular access. Skipping that, to paragraph just below halfway down page, largish paragraph: "Members should therefore note that the word 'commercial' was omitted from the description of the original application. Furthermore the applicant agreed that he wasn't...(read to the words)... Approval at the detailed application stage". So there seems to be a certain amount of chopping and changing of the application being progressed before the planning authority. And there is further consideration - I ask Your Lordship to go over the page, second paragraph on the page, it says: "It is considered the following discussions and exchange of correspondence with the applicant, the amended application at that time" - so we are talking about December 1995 - "satisfactorily dealt with three key issues referred to above in the report and therefore doesn't conflict with the polices and requirements of the unitary development plan". One of those issues being vehicular access, but given that the applicant has reserved it again rather than having it unreserved, that addresses that issue.

53. MR. JUSTICE SULLIVAN: They resolved that they will reserving approving the access, but the applicant does not want that reserve of approval.

54. MR. LEWIS: Yes, that is what then emerges. In the middle paragraph at about the middle of the page: "The committee approved the application in principle on the understanding that vehicular access to the site will be reserved for further consideration. Final decision..." - yes, that's it, this is the Council decision, they are still thinking it is reserved. At the foot of item 2: "Approval of the principal means of access to the site wasn't being sought as far as the application", but then it says next paragraph: "It transpired that the applicant did not wish to reserve approval of vehicular access to the site..... The applicant now wishes to obtain outline planning permission with the means of vehicular access being part of the application". So to that extent it is not absolutely clear that the access is in the same position, which is regarded as not according to the development plan earlier. But I can't help any further on that.

55. Now effectively the applicant is putting access back in.

56. MR. JUSTICE SULLIVAN: We know there has been a revision, it says "amended plans received". There was a revision and that brings it to within a hundred meters of Redhall Lane.

57. MR. LEWIS: Yes. That is good enough to say from my right that that does explain it. That is the figure I had in mind, of being a hundred meters of where the access comes from. And, yes, My Lord, following through from that, at the foot of the page: "The unitary development plan indicated that vehicular access to both the playing fields and business part will be via any roundabout in the vicinity of the Redhall Lane intersection with the A650 although the proposed roundabout is some distance from Redhall Lane" - and I think this passage is echoed in Mr. Mackie's affidavit which is before the court. "It is considered that the position of the new roundabout complies with the was unitary development plan requirements. Furthermore and perhaps more importantly, the proposed roundabout would enable a direct vehicular access to both the business park to the west and the hotel/motel to the east of the A650 which are allocated on the unitary development plan we provided. Therefore it is considered that in this connection the amended vehicular access complies with the unitary development plan. Furthermore there are no highway reasons to oppose the amended position of the proposed roundabout". As I have sought to indicate, there is an apparent change there in fact. This is cannot in any way be described as an additional virtue of the access proposal, given that it was seeking access to be achieved to the hotel site as on the concept plan. But there we are.

58. Carrying on, there is not a great deal more on the report, but just a note at the foot of this page A273, last paragraph: "Application was amended during the week commencing 3rd November 1997", and it was because of the mix of uses, it was advertised as departure application at that stage. Again amended over the page on 19th January 1998 to another description. But then we come to the specific consideration of the issues, and it's the fourth paragraph down this page: "It therefore considered that the determining issues of the amended application are whether the proposals are in accordance with the designation...(read to the words)... the application be referred to the department". Then it notes again at the foot of this page that the application was advertising departure application. There were various objections at page A275 at the tope, there is objection to the position of the vehicular access. Second last line of the very top paragraph: "Objection to the position of the vehicular access on the A650", and essentially that is reference to the applicants, and indeed Weatherall Green and Smith on their behalf.

59. There is reference then to the development plan on Snowhill and Newton Hill development strategy. Over the page on 276, in the middle: "It Is now considered that the current amended application is not a departure...(read to the words)... Modern business park". Again Your Lordship will see reliance is being placed on the development strategy. "The development can therefore be supported...(read to the words)... objective of the unitary development plan". And then My Lord...

60. MR. JUSTICE SULLIVAN: The next paragraph, traffic issues.

61. MR. LEWIS: But that is technical, traffic issues, if I can put that way.

62. MR. JUSTICE SULLIVAN: So there aren't highway reasons to oppose this development, provided highway conditions are imposed?

63. MR. LEWIS: Yes. Because, as between the applicants and the Council, there is no dispute that it is one access, it's a question of which one after all, My Lord. Over the page, A277, I think it is only - yes, only one or two more references left. About the middle of the page, a little bit about that: "The application is a departure from the unitary development plan" - that is quoting somebody objecting, and then there is another reference to the position: "If the vehicular access isn't in accordance with the unitary development plan it will lead to a landlocking ransom situation, the Council should consider a section 106 agreement"; again, that is the applicant Weatherall Green Smith.

64. MR. JUSTICE SULLIVAN: Then they deal with the position in the long paragraph.

65. MR. LEWIS: That is absolutely right, that's the next passage I was going to take Your Lordship to. "In relation to the position of the A650 as indicated on the applicant's plan...(read to the words)... and detailed planning requirements" (long read).

66. Again, My Lord, from the point of view of my application, there is a crucial paragraph in the report, and I shall be going on to submit that it reveals errors of law in terms of matters which we will take into account, and indeed the question of the location of the access ultimately. Just to draw Your Lordship's attention to this, reference is made in Mr. Ashworth's affidavit, on behalf of the Council, to the conditions proposed to be imposed, and indeed my learned friend repeats those references in her skeleton argument. It is page 279 at the foot. There is a condition 5: "Accept and may approved...(read to the words)... on plan" so and so. But, again, My Lord, that does not help with access to the applicants land after all. And similarly condition 6 "development shall not commence...(read to the words)... has been implemented". That seems to be relating specifically to the access point, and not so much to through access. That matter, My Lord, does not actually appear in this committee report, but is referred to - I have given a reference to it in my skeleton argument, My Lord, while we are in bundle B, if Your Lordship goes to page B309, document entitled "Additional Information" which was given to members along with the committee report.

67. MR. LEWIS: That's right. There is consideration of advice from Council in relation to access issue. In the middle of page 308: "Advice for Council has been sought in view...(read to the words)... south of Redhall Lane". It has a bit of familiar ring after the way matters are set out in Mr. Ashworth's affidavit. It goes on over the page to volunteer a condition. And that is now condition 25, whether one is looking at the planning permission issued on 16th June 1998; it's the reference from 106 agreement on 6th July without such a reference. So, My Lord, we can now, if I may put bundle B to one side, going back to bundle A, just to ask Your Lordship to note a point raised by Mr. Harrock from Weatherall Green and smith who was at the meeting, what happened again with this consideration of the issue of a section 106 agreement.

68. It is at page A47 at the very end of Mr. Harrocks note of the meeting.

69. MR. LEWIS: It's Councillor Croxhall speaking again. I don't know if Your Lordship had the opportunity of looking through the note generally, but he seems to have been involved quite a lot in discussion.

70. MR. JUSTICE SULLIVAN: I haven't looked at the whole of it. I note at page 47, "I have the same concerns as some members" - I have read that.

71. MR. LEWIS: I was going to ask Your Lordship to look at the paragraph immediately above that: "In view of the fact...(read to the words)... Section 106 question a bit further". And so what happened beyond that, My Lord, was that their apparently, as we now learn, was a meeting on the 16th June involving Councillor Croxhall and deputy leader of the Council as well. Yes, here it is, fourth paragraph on the same page: "The leader and the Chair and deputy Chair and other owners". And that was what was done. Apparently the discussions which went on the 16th June resulted in conclusion that no section 106 agreement was necessary and it was on the basis that the planned permission was on the 16th June 1998, albeit that the circumstances of the issue of the permission were not communicated to applicants until the 22nd June 1998. That is first reference to it, page A8 paragraph 13. That was Mr. Webster's understanding of what he was told on the telephone, if Your Lordship has that A8 to paragraph 13. He then corrects himself as to this on page A350, paragraph 7, and that in effect when he was notified of the grant of planning permission without the section 106 agreement. I don't know whether Your Lordship would not be particularly assisted by this. Your Lordship does have in the bundle the two documents it is on page A65. One of them says 'subject to section 106 agreement' and the corresponding page on the subsequent issue of planning permission on 1st July 1998 does not. That is on page A76.

72. MR. JUSTICE SULLIVAN: Would that be a convenient point.

73. MR. LEWIS: I have all but finished on the chronology. There are, I think, all but two documents that I was going to identify for Your Lordship, to tie them in with the chronology, and then I can proceed to my submission. They are both in bundle B of the first, the B351, and in accordance, as I understand it from my friend, I double checked it, the document at B351, although it says 5th June 1998, it is actually a minute of the sub-committee meeting of the 16th June. Because Mr. Ashworth proposed in his paragraph 7 of B265, he produces a note of the meeting of 16th June. I was slightly confused in the light of the date, and because it was said there was going to be a committee meeting on 15th June, it would have been surprising if there were nothing more than this document generated on the 5th. So I accept that this is what Mr. Ashowrth says. And so, here My Lord, you can see it is pretty much what is set out in Mr. Ashworth's affidavit. You do not require a section 106 agreement if the condition will do the job, and that paraphrases what they say, there is no planning meeting for requiring a section 106 agreement, you don't do so. But that goes to the crux of the case which I will be addressing Your Lordship on in a moment or two.

74. The only other document is the very last page in bundle B, B475. It is a letter from the Council to the building design partnership, who Mr. Mackie tells us in his affidavit are his - I will call them consultants. It's a letter dated 1st July 1998 dealing with the error on the permission originally issued on 16th June. It is the point which I said I will take Your Lordship to. In the last sentence: "I am therefore enclosing a copy of the amended notice which supersedes the earlier decision notice". So it would appear that what the Council are saying it's the planning permission issued on 1st July, which is the operative decision notice.

75. MR. LEWIS: Thank you, My Lord. I would seek to take Your Lordship to my submission, but starting with my paraphrasing of the grounds of my application on page 3 of my skeleton argument. The application is made on grounds that permission was granted otherwise than in accordance with the development plan. The access to????? Is implicated in the position envisaged in the unitary development plan for Wakefield and supplementary planning guidance published under it. This has the consequence of jeopardising comprehensive development for the Snowhill special development area. The second ground is that permission was granted without regard to the applicants objection to UDP was withdrawn in the light of assurances of the position to the access to the development area. And thirdly that permission was granted in circumstances which couldn't be remedied by the exercise of compulsory purchase powers and it's contrary to the belief that they could be on the Council's part. So my submissions - some of them will have a familiar ring - the first one is that the special policy area was designated as such under the relevant policy, policy NWS 65 of the unitary development plan, and then I set out this bit of the explanatory text to which I have already taken Your Lordship. They want a comprehensive and balanced development. No access to special policy area as identified on the proposal map; and I provided Your Lordship with a copy of that with the skeleton argument. It is a sheet of A A4 like that (Indicated). Your Lordship can see it's on a scale that perhaps is not surprising that an access would not be indicated but, in any event, as we are told in the plan itself, this is going back to my skeleton argument, that the access would be via a new roundabout in the vicinity of Redhall Lane intersection of A A650 Wrenthorpe bypass. Again this is paraphrasing from the other passage in the explanatory text I took Your Lordship to. Details of the access would be specified in supplementary planning guidance to be prepared by the Council. And I took Your Lordship to that previously, and I showed Your Lordship the plan, albeit that it was a plan assaying 'approximate location of access'; that was also a plan of the clutch of plans. It is an A A3 copy, and it is numbered in large script "Plan 4" in the bottom right-hand corner. Landscaping and access. Your Lordship will see from bundle B it comes from the supplementary planning guidance. Again in paragraph 3 of my skeleton argument, as stated in the fifth paragraph of Mr. Webster's affidavit, he withdrew his objection to the draft version of the UDP on the understanding that access to the special policy area would be via the roundabout shown on the concept plan, which I will be taking Your Lordship to. And that accords with plan 4 in the supplementary planning guidance which the Council produced. In the light of that, I go on to submit that the applicant had a legitimate expectation that the fact of the withdrawal of objection to the unitary development plan, and the basis for it would be properly take into account in determining the planning application which was at variance with the UDP and the agreement, and I there cite the case of R. v Sevenoaks District Council ex-parte Wickham , [1998] JPL 1145, and I provided a copy of that with my skeleton argument. Your Lordship has that.

76. MR. JUSTICE SULLIVAN: That was a CPO case, is it?

77. MR. LEWIS: That's right, My Lord. In that case a Mr. Wickham had objected to compulsory purchase order proposals in Sevenoaks, and he withdrew his objection to the CPO in the light of a revision to take into account proposed extension of his firm's premises. Now, time went on after the withdrawal of his objection, and actually specific agreement was entered into in writing as between the Council and Mr. Wickham on that occasion. But new developers became involved to undertake the development called Centrof - referred to at the end of the first paragraph - but they ultimately proposed a scheme which departed from the terms of the agreement, and Mr. Wickham challenged the local planning authority granting of the planning application for that proposal which was at variance with the agreement, essentially on two basis. First of all his had a substantive right on the basis of legitimate expectation that the planning wouldn't be permitted, otherwise than in accordance with that agreement. But that ground was dismissed, and I do not seek to advance the ground on the same basis here. But he also said that he had a legitimate expectation of consultation in relation to the proposal to approve a scheme at variance to the agreement he had entered into. In relation to that ground it was held that there was no evidence to suggest - I am looking at the top of the second page 1146: "No evidence to suggest the applicant had been unfairly deprived of the opportunity to which he had a legitimate expectation for consultation or discussion before the relevant was made.....and the applicant was given every opportunity to express such views as he thought appropriate. There is no basis for the contention that.....the respondent Council was in some way acting in denying legitimate expectation of the applicant". My Lord, in effect there is little more to the decision than that. And Your Lordship will see in the way that I have cited it, effectively on a comparative basis, because here Mr. Webster did have an agreement, albeit not a written one, in respect of which he withdrew objection to the UDP. I could not go so far as to contend that the local planning authority could be bound by such an agreement so as only to grant planning permission so s to accord precisely with it; but the particular features of this case, that is to say the applicant's case on which I rely, are of course the fact that the unitary development plan seems to have been intended to reflect the agreement, and equally, My Lord, the way I have put it in the skeleton argument, is that the fact that the agreement and location of the access in accordance with it, should have been something that should have been take into account. So it may be ultimately, My Lord, that that takes me back to the point on the position of the access, the extent to which that accords with the unitary development plan, and the point which I will make with the Arlidge case later on; but nevertheless commend the Wickham decision as being an indication of the operation of the doctrine of legitimate expectation in a case such as this.

78. MR. JUSTICE SULLIVAN: Except in so far as the unitary development plan is concerned, the planning authority, by the combined effect of section 72 and section 54(a), they are obliged to have regard the to development plan and all other material considerations to decide it in accordance with the development unless material considerations indicate otherwise, but no one could sensibly have any sort of legitimate expectation that the planning authorities will abide by the unitary development plan because, on any basis, other material considerations might come along which would lead them to say that it was the most flagrant breach of the UDP, leaving aside the shoving of an access - but they might say, well, changed circumstances, we think we are not obliged to decide in accordance with the UDP.

79. MR. LEWIS: Yes, My Lord, I have to accept that. In a way it is a great western fish point which is referred to in the Wickham decision itself. As Your Lordship appreciates, it's the crux of this case that if the local planning authority are desirous of achieving a comprehensive development of the application area, they have to have regard to the extent that that objective will be compromised by approving a scheme which does not actually afford access to all the parts of it. But then again, I am getting ahead of myself in relation to Arlidge point.

80. Coming on to my next paragraph in the skeleton argument, paragraph 5, at the bottom of page 4. The Council has never the less approved an access to the North of Redhall Lane, and this isn't in my submission in accordance with the development. And pausing there to remind Your Lordship of the references. The Council says effectively - it's in bundle B, page 272, and I was thinking of the committee report, that is paraphrased in Mr. Ashworth's affidavit. They said in effect to have moved the access 100 meters to the north was nonetheless within the spirit and meaning of the UDP. On behalf of the applicant that is simply not accepted. I would submit that the use of the word "in the vicinity" envisages in effect ("in the vicinity of Redhall Lane" I should say) - envisages in effect that the access would be approved at that point, albeit there may be variations because of detailed highway requirements for instance. There is nothing actually indicating that there was any assumption on anybody's part that it would be a little bit to the north or a little bit to south of Redhall Lane. And that goes back to the point that Mr. Webster has made in his affidavit and that has been challenged by no one, not by the Council or even by Mr. Mackie; that it was envisaged that the agreement that was entered into for the withdrawal of objection to unitary development plan was that the access was at that point.

81. MR. JUSTICE SULLIVAN: Are you actually saying that moving a junction a hundred meters to the north or indeed to the south of a very large site like this takes one outside the vicinity of the Redhall Lane junction?

82. MR. JUSTICE SULLIVAN: Very well. That is the first argument.

83. MR. LEWIS: That is the first point. I have made all the points there, My Lord. Even though it said that the concept plan, the title of it says that it is illustrative, the plan 4, which is the one from the supplementary planning guidance, says approximate position. Nonetheless, in my submission, that does not mean a hundred yards north or south, and the reason for that, again, is that it is the basis of the agreement between the parties to describe them in that way, that's including Mr. Mackie and the Council, they were seeking to avoid a situation where either land owner had the opportunity to hold the other to ransom. Again, that is Mr. Webster's unchallenged evidence. That is the first point - not in accordance with the development plan nor with the supplementary planning guidance published under it or the concept plan. I think I have made all the points on that. So, again, there is a straight section 54 A point and Your Lordship has that clearly in mind, the local planning authority should determine any application in accordance with the development plan unless material considerations indicate otherwise. Again, here, My Lord, that's assuming Your Lordship were with me on the point that the access should have been effectively at Redhall Lane, there are no material considerations justifying moving the access, least of all in circumstances where it gives rise to the land locking problem identified by the applicant in this case. I will be coming back to that.

84. Going beyond that, My Lord, it is true to say that the Council felt it necessary to seek to address the applicants concerned - I am looking at paragraph 6 of my skeleton argument here. Council saw fit to address those concerned about the land locking effect on the planning application and they proposed a condition apparently designed to ensure the unrestricted access be afforded to the applicant's land; and that condition I have given reference...

85. MR. JUSTICE SULLIVAN: What is that to? This is condition 25?

86. MR. LEWIS: Yes, My Lord. I am pausing on what the reference is to that, but that should actually be...

87. MR. JUSTICE SULLIVAN: What has become condition 25.

88. MR. LEWIS: Yes, My Lord. I think there may be a typographical error in referring to what the exhibit might be, but I don't think that is important in any event. I was just pausing on that. I don't think it is important. I have taken Your Lordship to the documents on which I rely. I suspect, My Lord, that it would be a reference to CFW 5 which is the note of the deliberations of the planning committee meeting, and there is a passage where Mr. Ashworth is speaking, and the objectors have raised concerns about land locking and they looked at conditions. But, yes, I set out the condition, which is the one: "The development chart connecting to the scheme...(read to the words)... Development to the application site". But as I go on to submit, the condition cannot of itself achieve the stated objective of avoiding land locking because it doesn't require Mr. Matthew to fill the access road up to the boundary of the applicants land, so Mr. Mackie is in a position to hold the applicants to ransom in respect of connection to his access". Again, My Lord, this was the basis of the request made on the applicants behalf for a planning agreement to achieve the Council stated objective. Again, it's a pure point of imposition of conditions. There is nothing there requiring the facility to access the land. And, again, even though the local planning authority seem to have volunteered that condition on the basis of disposing of the landlocking problem, it does not dispose of it in so far as Mr. Mackie is still in a position even, with the imposition of that condition, to hold the applicants to ransom.

89. MR. JUSTICE SULLIVAN: My understanding is that you could not achieve the avoiding of the ransom strip by the imposition of a condition. You could achieve it by an agreement under section 106 if the land owner was prepared to enter into it. But, as I read this planning officers report to the committee, what it is saying is - I am looking at page 277 - the access in technical terms is capable of accessing the land to the west and indeed to the east of the A A260 - whatever the road number.

90. MR. JUSTICE SULLIVAN: Whatever the road number is. Yes A 650. So that, as it were, the planning authority are concerning themselves with the physical suitability of the access and the access point to open up the development land on either side, and they are saying, as I read it, as to unlocking your clients land, that is a matter of commercial negotiations between your client and Mr. Mackie. At the moment I am not seeing why they cannot take that attitude. They are the planning authority, why should they care whether your client has to pay - it makes Stokes and Cambridge failure to release his land provided that access is physically suitable for serving the land.

91. MR. LEWIS: I made the point again in reliance on the agreement. But there is a further point, and it is coming the Arlidge matter. Effectively there is nothing before the authority to satisfy them that if they do not sort out the question of landlocking, the site would be developed comprehensively, because Mr. Mackie is in a position where he can just build his landownership and stop.

92. MR. JUSTICE SULLIVAN: Yes, but as I understand it, physically, what the Council is concerned to ensure is that, having stopped it - it's not as though there is an office block build straight across the potential line of the access way - so the access is physically capable of serving the remainder of the development land provided land owners can come to terms. It is a matter for them whether or not they want to.

93. MR. LEWIS: Beyond that, it's always been a state of objective that the application site as a whole should comprehensively developed, and there is no indication that the local planning authority would be content, if what would amount - this is very much out of the cuff - if it's a bit under half of the application site would not be developed, if it stops because of the landlocking problem. And Mr. Mackie's attitude seems quite clearly to be stated, that he is going to sit there - if I can put it in a colloquial way - with his arms folded until he is bought out, as under the ransom machine he is seeking to exact. On that basis, the evidence of the applicant is that agreement is not possible with Mr. Mackie, and so comprehensive development of the application site will be frustrated.

94. MR. JUSTICE SULLIVAN: An agreement is not possible because he does not want to pay a ransom price. I see that.

95. MR. LEWIS: But it comes back to the Arlidge point, that is wholly unreasonable. That is the passage cited in paragraph 8 of my skeleton argument.

96. MR. JUSTICE SULLIVAN: Yes. But I would have thought, isn't that where the long stop of the Council compulsory purchase powers for planning purchases comes in. They have to pay compensation based on the ransom value, but if it was desired to get the thing done, why can't they do that?

97. MR. LEWIS: Because then they don't get their money back because that release the land for development. It is foisting on the Council taxpayers the burden of paying out compulsory purchase compensation. It is the Council who has to budget for that. And I am afraid unless there is something I missed, I do not immediately follow how the Council will be getting their money back in relation to that. It is Mr. Mackie who is the one who would be benefiting from this. And it is in a context where Mr. Mackie, the Council and the applicants had agreed that access should actually be from the point envisaged at the time of production of the concept plan, and of course the UDP inquiry.

98. MR. JUSTICE SULLIVAN: I am sorry. I said it in short terms. I would envisage what would happen in practical terms would be, your clients or their successors in receivership would come along to the Council and say "We have tried to negotiate with Mr. Mackie. He is not prepared to accept even a conventional Stokes v Cambridge payment he is simply asking for a move. 'Will you please help us to unlock the land development' and Council will say 'We are prepared to make a compulsory purchase order and we require an indemnity from you as to costings', and the practical effect would be that the Council will acquire the land, pay the compensation as assessed through the lands tribunal, get the money back under the indemnity, which effectively will come out of the pockets of those who wish to develop your clients land. I can't understand why that isn't a practical course as a last resort.

99. MR. LEWIS: Then again it's a course which could have been short circuited by requiring a section 106 agreement. I do not seek to contend that the local planning authority could impose a section 106 agreement, but they can pay regard to the agreement entered into between themselves, Mr. Mackie and the applicants. They can pay regard to the objectives at least of such supplementary planning guidance under the unitary development plan, that the access should be at the stated point, and they could have refused planning permission on that basis. And, again, having regard to the Arlidge point, Arlidge does seek to be saying that somebody holding out to ransom can be regarded as wholly unreasonable, but there is a note, I appreciate, in the general note which says "Okay, that is how developers may conduct themselves". But this particular situation, My Lord, it's addressed upon the evidence before Your Lordship - and I set that out in paragraph 9 of the skeleton argument - it does seem that agreement is an impossibility in this case. And that may be a consequence of the fact that the applicant company being in receivership. But, nevertheless, My Lord, this is a case where I would submit, with the utmost of respect to Mr. Mackie, he is being wholly unreasonable in the kind of context contemplated by the Master of the Rolls in Arlidge.

100. MR. LEWIS: There are two factors their, My Lord. The access was required to be located in the vicinity of Redhall Lane. Your Lordship indicated a view on that.

101. MR. JUSTICE SULLIVAN: As to whether that is in the vicinity or not.

102. MR. LEWIS: That is the hundred meters point. And equally there is the fact of the apparent objective, again unchallenged on Mr. Webster's evidence, that the agreement entered into whereby objections were withdrawn to the UDP, that agreement was based on the fact that neither party would ransom the other in relation to access, and that was the basis on which this large jointly owned application site was to be developed, comprehensively, in accordance with the objectives identified by the Council in their UDP. That was the means of doing it, and comprehensive, as Your Lordship would appreciate, does not necessarily envisage Mr. Mackie building up his half of the site first, and only then freeing up the other part of it. I think it is a point raised in Mr. Ashworth's affidavit for the Council, and it is an objective of the Council to see this site come forward relatively rapidly. It is not apparently an objective on the Council's part that a bit over half of it, however the precise area is balanced out, just part of it should be developed in advance, with a big question mark over the time it will take actually to develop out the other part. Again, that's the applicants land.

103. MR. JUSTICE SULLIVAN: Yes. So you want to take me the Arlidge.

104. MR. LEWIS: That would be the next point. That is reported, My Lord, in 1998 Journal of Planning Law at page 116. The full reference to Arlidge v The Secretary of State for the Environment .

105. MR. JUSTICE SULLIVAN: Yes, you gave me the copy with your skeleton, I think.

106. MR. LEWIS: The decision of the Court of Appeal, the Master of the Rolls, giving the first judgment. I will take Your Lordship through the facts as they are set out at page 116:

107. But it's principally access to the trunk road, which Your Lordship will see was in conflict with development plan policy.

108. And it was held that the words 'so far as practical' in the relevant policy meant practical for planning purposes.

109. I am seeking to take Your Lordship to the relevant passage.

110. MR. JUSTICE SULLIVAN: Shall I tell you what I looked at?

111. MR. LEWIS: I would be obliged.

112. MR. JUSTICE SULLIVAN: I have looked at the reference at the top of page 118, where his Lordship identified "as far as practicable", and I have seen at the top of 120 the way that applicants' expert put it. Because the Council had not made satisfactory provision, which he thought should have been done in the early negotiations, the Inspector would accept that it was necessary to have the access shown where it was. Then there is debate about that, and then page 121.

113. MR. LEWIS: That is it, not surprisingly, My Lord, the Master of the Rolls says effectively that the planning consultants got that the wrong way round. It's up to the applicant to sort that out. One comes to the passage which I cite in my skeleton argument, this is on 121:

114. Again, My Lord, there is a point about what material there was before the Inspector and local planning authority. Before Your Lordship there is the question that as paraphrased by my understanding solicitor, it seems an agreement is an impossibility with Mr. Mackie, and that therefore gives rise to putting into jeopardy the comprehensive development proposals for the application site. there is a similar point on the brief judgment of Lord Justice Brooke, and just at the top of page 122, second paragraph:

115. Again, it is all about the circumstances of the case and that very much goes back to the point of personal circumstances, My Lord. So that is the basis on which I rely on Arlidge, My Lord.

116. MR. JUSTICE SULLIVAN: I think you also got the notes on page 122. That is what you were thinking of earlier.

117. MR. LEWIS: Or an exorbitant price. Yes, it is at the very bottom.

118. MR. JUSTICE SULLIVAN: Again, forgive me, it seems to me that - is not that the circumstance in which the Council would then consider if there was evidence that Mr. Mackie was demanding an exorbitant price or simply refusing to permit the land to the south to be developed at all. The Council will consider whether or not a compulsory purchase Order under the Planning Act powers would be justified or not, recognising no doubt that any acquisition of the land will have to reflect the value as a ransom strip, but no doubt they would make jolly sure they have got an indemnity to cover that from the land to the south, before make CPO.

119. MR. LEWIS: But, then again, it's very much undermines their state of objective of achieving comprehensive - they have to go through such a cumbersome procedure in order to do so. There is no indication that they investigated the situation before they granted planning permission. They effectively hived off the question of the section 106 agreement to this subsequent sub-committee meeting. They did not investigate the question to the extent to which development could be frustrated by Mr. Mackie taking and unreasonable attitude. And, again, they have left matters in a position where the applicants are left having to approach Mr. Mackie for access albeit they said and agreement would seem to be an impossibility in respect of that. So, again, I am coming back round to the point about agreement under UDP. It is just how the achievement of the objective - it is a rather large site in joint ownerships, was apparently envisaged to do developed as under the UDP. That was the basis on which the Council accepted the withdrawal of the objections and made the area subject to special policy destination. And so, again, My Lord, I do submit that it is a material consideration which the authority have failed to take into account in so far as they haven't had regard to the position Mr. Mackie is in, in relation to achieving the landlocking of the Webster or the applicants land, simply because of how the application before them has been progressed.

120. MR. LEWIS: Again, My Lord I have taken on board I think the points I make in paragraph 9 of the skeleton argument, about agreement being be an impossibility; and paragraph 10 the point and compulsory purchase powers. Your Lordship and I discussed that also. I would say it is untenable and it is an unjustifiable burden on the Council and tax payers, subject to the point that the applicant could be invited to indemnify the council, but that highlights the problem, My Lord, which ought in my respectful submission to have weighed with the Council when they were considering Mr. Mackie's planning application. And so I go on to submit that, in the circumstances, it is manifest in my submission that the Council should have required a section 106 agreement or proposed a condition which was properly designed to secure comprehensive development of the Snowhill special policy area, because the condition does not require the road to be built up to the boundary in effect.

121. Then the final matter I have to address, because it is a point which is taken against me, and in any event depending on your view as to timescales under which the applicants are operating in this case. First of all, My Lord, I would submit that the date of the 16th June should not be an operative date from which to start running time, as it were, because of the reissue of the planning permission. Equally, My Lord, the first date on which I would accept time could start to run would be the 22nd June, which was the date the applicant was first effectively given notice that the planning permission had been granted not subject to a section 106 agreement. But then, thirdly, My Lord, there is the third date that Your Lordship has, that in fact the formal document, the action of the Council perhaps whereby they granted planning permission, not subject to a section 106 agreement, is 1st July. So in relation to the two latter dates, My Lord, 22nd June and 1st July, that the applicants would not have made their application outside the 3 months, as it were, long stop in Order 53.

122. MR. JUSTICE SULLIVAN: But it is long stop.

123. MR. LEWIS: I am conscious of that.

124. MR. JUSTICE SULLIVAN: And you have got the position, except that you did not, as it were, know exactly what was happening on 16th June, you might have thought that permission was going to be subject to section 106 agreement, which there is no dispute in turn by the executive officer as to 22nd June, and this is something you have been hearing yourself, so you jolly well knew what your objections, were and the point against you is, with that background, why didn't you file it in the 86 A? It's not a new point, as though someone has taken you unawares, and you think "My gosh!" You have been saying to them "You should do this with the 106", and they come along and they say "We are not".

125. MR. LEWIS: Again, My Lord, as Your Lordship would be aware, there was negotiations entered into, and in fact it was only after the last meeting with Mr. Mackie, at which my instructing solicitors deposed - at which I should say, as my instructing solicitors deposed - agreement seemed an impossibility at that stage. It would, in my respectful submission, have effectively been premature to apply for judicial review before the possibility of reaching an agreement with Mr. Mackie had been exhausted, because after all that would have remedied the applicant's complaints.

126. MR. JUSTICE SULLIVAN: I don't understand that entirely. What you are doing is challenging a decision of the Council, and it seems to me there is nothing to prevent you from challenging it and saying, "We are putting you on notice, we are applying for judicial review", but obviously very much hoping that matters can be resolved by negotiations. Quite sensible to do that, because it strengthens your arm in negotiations.

127. MR. LEWIS: As to notification, if Your Lordship looks at bundle B308, the Council knew the condition was being contemplated, this is the view that was contemplated. This is an additional information note appended to the committee report. They knew at that stage, and that's quite clearly a reference to the applicants' interest, respectfully querying, having made an application to the court at that stage, would have lent to, the strength of the applicants' negotiating position. And, again, given that the court had the discretion to refuse relief in a case such as this obviously, judicial review can be taken much further if the applicant had been able to sort matters out with Mr. Mackie, which of course he was not able to do. And so, I do go back to my submission that it would have been premature for the applicant to apply to the court in advance of seeking to resolve the matter with Mr. Mackie, albeit that Mr. Mackie proved ultimately to be implacable.

128. My Lord, my friend has referred to various of the recent authorities on the need to act promptly, particularly in relation to planning matters. I don't know whether Your Lordship would be assisted by reference to - I imagine some of them would be quite familiar to Your Lordship.

129. MR. JUSTICE SULLIVAN: Some of them are. I don't want to sound disrespectful, but they make the same point in slightly different language, that 'promptly' in the context of challenging permission jolly well means 'promptly'. You can't just wait until it's almost expired.

130. MR. LEWIS: I would not seem to dissent from what those decisions say. Nonetheless, Your Lordship will be aware that the six week rule comes in effect from Section 288; the position is in my respectful submission distinguishable here where, in any event, there has been negotiations - I am falling back on the same point I was just making to Your Lordship. Equally - and my learned friend can contradict me on this in so far as she sees fit to direct Your Lordship's attention to any of those decisions, but from my knowledge of them I don't think any of them involved negotiations in relation to the matter which was the source of grievance to the applicant in those cases.

131. MR. JUSTICE SULLIVAN: You certainly cannot treat the six weeks as absolute, but it is a yardstick against which one can test parallel challenges under judicial review, and there may be circumstances, of course, if things aren't clear or if documents aren't produced, in the six weeks cases you have a decision letter on your doorstep, and you have all the facts and you know what you have to challenge. There may be circumstances that you have to challenge planning permission and you have to write to the Council and find out what they did - have they really issued a section 106 - all those matters you can take into account.

132. MR. LEWIS: I am obliged for that, and I pray that in aid and I would submit that this is the sort of case here where quite responsibly, if I may say so, the applicant wanted to pursue negotiations with Mr. Mackie, albeit those negotiations proved fruitless. Similarly, My Lord, and even though the delay point is taken both by my learned friend on behalf of the Council, and it is referred to in Mr. Mackie's affidavit, this is not a case were, first of all, in relation to the Council, there is any prejudice to good administration here. Yes, it's a desirable objective that the application site should be developed comprehensively, but in my submission that objective is effectively self-frustrating in this case, where the comprehensive basis for development in such a way has not been sorted out because the land owners have not agreed about the landlocking problems. Equally, My Lord the permission challenged relates to an outline application. If, with respect to him, Mr. Mackie were not so implacable, it would not be beyond the bounds of possibility that the applicants and he could agree a detailed scheme with access, if I can be forgiven for putting it this way, in the right place which could come on stream without any of the delays hinted at or pointed to both by the Council and Mr. Mackie. Also to that extent, Mr. Mackie would not lose out on any of the money which he indicates he has invested in these proposals. Because self-evidently nobody is saying planning permission should not be granted at all. The contention is that planning permission should be granted in such a way as to achieve comprehensive development, again in accordance with the Council objectives.

133. I think, finally, on prejudice, again it does not really lie in Mr. Mackie's mouth, if I may say so, to say that he is prejudiced by the exacting of the commercial advantage over him by the applicant, which is a point that trails towards the end of his affidavit. I am looking at bundle page B384, paragraph 10. He said an applicant for judicial review should not sit back. In a normal situation, Mr. Mackie and the applicants would be joint applicants for the planning permission and one would not have this problem at all. But here is Mr. Mackie saying that effectively Mr. Webster and the applicant company are trying to put one over on Mr. Mackie, whereas what he says towards the end of his paragraph 10 on page 384: "Confirmed that Mr. Webster's affidavit...(read to the words)... To grant free access to Stirling Construction Yorkshire Limited rather than to improve the local planning authority's position to grant planning permission". So, again, Mr. Mackie is simply saying, "I have got away with achieving an advantage in relation to landlocking, ransom or access", however one wants to put it. As I prefaced this part of my submission, it does really lie in his mouth to say he's prejudiced. He is saying that he's effectively putting one over on the applicants rather than vice versa, in my respectful submission. I will just check my note, but I think that is my application. I am obliged My Lord.

134. MR. JUSTICE SULLIVAN: Yes. Thank you very much. Miss Peterson, I have read your skeleton and I don't think I need trouble you.