England and Wales High Court (Administrative Court) Decisions

FERNLEE ESTATES LIMITED v. CITY and COUNTY OF SWANSEA v. NATIONAL ASSEMBLY FOR WALES [2001] EWHC Admin 360 (18th May, 2001)

Case No: CO/3844/2000

Neutral Citation Number: [2001] EWHC Admin 360

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 18^th May, 2001

MR JUSTICE SCOTT BAKER:

1. The Claimants, Fernlee Estates Limited, are developers. The First Defendants are the City and County of Swansea ("the Council") and the Second Defendants are the National Assembly for Wales, ("the National Assembly"). There is before the Court an appeal by the Claimants against the National Assembly's decision to confirm the Council's definitive map modification order number 161, 1999, Bridleway at Kingrosia Park, Community of Clydach. The order was made on 17 December 1999 under Section 53 (3) (b) of the Wildlife and Countryside Act 1981 (the 1981 Act) and its effect was to add to the definitive map required to be maintained by the Council a bridleway along the route shown in the order.

2. The order was based on presumed dedication pursuant to Section 31 of the Highways Act 1980 which provides:

(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

(2) The period of 20 years ......... is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in subsection (3) below or otherwise.

(3) Where the owner of the land over which any such way as aforesaid passes -

a) has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and

b) has maintained the notice after the 1^st January 1934, or any later date on which it was erected,

the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.

3. The inspector decided the way was brought into question in late May 1996 and so the 20-year period is from late May 1976 to late May 1996.

4. The inspector, who was appointed by the National Assembly to confirm or reject order number 161, was Mr G. F. Laslett. He held a public local inquiry into order number 161 (and the related order number 138, to which it is not necessary to make any further reference) on 1, 2 and 3 August 2000. The route in the order is described as A B C D E F and is shown on the plan annexed to the order. I have helpfully been provided with a larger scale plan MS1 on which the relevant route is shown as F G C D E. In this judgment I shall follow the lettering used by the inspector.

5. The sole statutory objectors at the inquiry were the Claimants. There were three additional non-statutory objectors at the inquiry, a Mr Marnell and Mr and Mrs Hiscox, who had moved into a property in Oakwood Rise and whose garden was crossed by the order line.

6. The Claimants are the owners of land at Oakwood Rise which was formerly part of the Forest House Estate but has since been largely developed for housing. To the west lies Kingrosia Park which was developed for housing in the 1970s. From 1960 the Llewellyns lived at Forest House. The plan annexed to the conveyance to them shows that they owned just over 3 acres as well as the house and it shows also their private right of way which was also the line of the original public way. Because of the development of Kingrosia Park the line of the right of way had in part to be changed. The critical section is AB and the first important question for the inspector was whether this section was being utilised by late May 1976. Mr Llewellyn died before the critical period, but Mrs Llewellyn continued to live in Forest House until she went into a home in 1992.

7. The locality of the order route is helpfully described in paragraphs 7 to 9 of the inspector's decision letter and it is not necessary to repeat the description in this judgment. The plan MS1 is useful in following the inspector's description.

8. The inspector had to focus on four issues that are pertinent to this appeal:

i) Was the part of the order route shown as A B on the order plan used by the public at the beginning of the 20 year period ending in late May 1996?

ii) Was the order route used "without interruption for a full period of 20 years" as required by Section 31 (1)?

iii) Was there sufficient evidence during the 20 year period of no intention to dedicate (a) by the owner of the Forest House Estate and (b) by the owner of Kingrosia Park?

9. His conclusions were that the section A B was used at the beginning of the 20 year period, that the use of the route was without interruption for the full period of 20 years and that neither the owner of the Forest House Estate nor the owner of Kingrosia Park had shown an intention not to dedicate. The question on this appeal is whether any of those decisions is assailable in law.

Was Section A B in use by late May 1976?

10. Route AB was intended to replace the original access route into the Forest House Estate. Mr Louis Thomas, a surveyor, gave evidence. He was associated with the managing agents for the Kingrosia Park Estate between about 1952 and 1978 or 1979. His involvement was much more day to day in the earlier years than it was in the later years when there was a contracts manager on site. The original driveway was gated where it entered the Forest House Estate from an "S" shaped detour after leaving the rear of 127 Pontardawe Road (see blue line on MS1). The gate was some 20 metres south of the present gap between numbers 171/172 Kingrosia Park. This, and other unlocked gates, had been necessary when cattle were grazed on the Kingrosia Park Estate. Route AB became the planned alternative, shown on the phases 9/10 drawings, from perhaps 1970. The "S" shaped detour was due to have numbers 165 and 170 Kingrosia Park built over it. When a new sewer was laid in about 1974 for numbers 161 - 168 it was necessary to disrupt the original driveway. His recollection is that various alternatives were employed to maintain Mrs Llewellyn's access to Forest House. She used to complain about building materials causing blockages.

11. The inspector heard evidence from Mr Collins, who lived in number 166 from February 1976, and Mr Butler who lived in number 165 from April 1976. Theirs were the first properties to be constructed on the turning circle. The inspector accepted their evidence that they used no line other than AB, albeit it was in a rough state. This is an important finding of fact, which the inspector was fully entitled to make. Other witnesses gave evidence of use of the route at the time. The vast majority never remembered ever encountering any difficulty. Nor was there any evidence that site activities in building numbers 168 - 173 involved fencing off the area. There was no evidence to support Mr Thomas's contention that workers discouraged anyone from following the planned line of the route around the turning circle in front of numbers 168 -171 or along AB. Mr Thomas thought that the original entry point to Mrs Llewellyn's land could still have been in use in May 1976 either from behind or in front of numbers 161 - 167. He said that, after completion of the houses up to number 167, there was a shortage of money and hence delay in continuing with the development anticlockwise around the turning circle in numerical order. The Claimants placed reliance on a photograph produced by Mr Collins. It is not clear when this photograph was taken. Mr Thomas said it was not taken before the summer of 1977. However, the inspector made no finding on this, albeit he clearly had the photograph in mind because he mentioned it (paragraph 21) when recounting the Claimants' case.

12. Against the background of a wealth of evidence that the way generally was used as a public way over the whole of the 20 year period the inspector regarded the evidence of Messrs Butler and Collins as "particular anchorage points". Route AB had always been the planned alternative when a detour became necessary. (It was shown on the phases 9/10 drawings.) Mr Thomas was only on the site occasionally whereas Mr Butler and Mr Collins lived there. Mrs Llewellyn needed, and was given, constant vehicular access to Forest House and there was no evidence, as the inspector described, from those further afield of access problems after numbers 161-167 were built. There was, on the evidence, no other firm candidate for where the route went once it was diverted other than along the line AB. The inspector was justified in concluding that: "on balance I favour the view that Mr Butler and Mr Collins would have remembered clearly any alternative which was necessary for more than a temporary reason." In the end he had to piece together the events of 1976 and thereabouts in the light of conflicting evidence. In my judgment he was fully entitled to accept the clear evidence of Messrs Butler and Collins rather than the, in some respects, more tentative evidence of Mr Thomas.

Was the order route used without interruption for 20 years?

13. The inspector was satisfied that the route existed as a useable route for horse riders and walkers for the full 20 years without interruption other than, possibly, ones of such a very temporary works related nature as not to be significant.

14. Mr Jarman, for the Claimants, argues that the long running building works must inevitably have constituted an interruption to any public use. He also makes the point that there must be a defined track. It should be borne in mind that the lateral movement of the track was no more than 20 metres (see paragraph 48 of the decision letter). As Mr Walters, for the National Assembly, pointed out where a route from one point to another goes across open land the route need not follow a precise path. See James L. J. in Wimbledon and Putney Commons Conservators v Dixon [1875] 1Ch 362, 368. Given that it was established that the track AB went between what is now known as numbers 171 and 172 I am unpersuaded that the Claimants have any case on the ground of inadequate precision. The route is sufficiently defined albeit it may have varied slightly from time to time. Mr Thomas admitted in evidence that blockage with dumped building materials and trench digging would only have amounted to very temporary interruptions on any access, because he had agreed to meet Mrs Llewellyn's continuous need of a vehicular access which could only come from this westerly direction. Given that some deviation was necessary, it seems on the face of it unlikely that there was any interruption after the deviation. There was a long term understanding that there was a public right of way which witnesses could remember going back to childhood and their parents before that. The allegation of substantial interruption in paragraph 7 (ii) of the particulars of claim is not supported by any evidence recorded by the inspector.

15. Ms Davies makes the point that if there was any interruption by the developers it would first of all be temporary and insufficient and secondly would not have been with the "intention to stop anyone going along the way." The developers were, after all, required to maintain Mrs Llewellyn's access.

16. In order to constitute an interruption for the purposes of Section 31 (1) of the Highways Act 1980 there must be some physical and actual interruption which prevents enjoyment of the way rather than merely acts which challenge the user while allowing it to go on: Merstham Manor Ltd v Coulsdon and Purley [1937] 2KB 77, 84-85. A mere absence of continuity in the de facto user will not stop time running, there must be interference with the enjoyment of a right of passage, Jones v Bates [1938] 2 All ER 237, 246. Thirdly, "interruption" means "interruption of fact." However, the circumstances of and the intention with which the barring of the way takes place are relevant. For example, the blocking of a road by a broken down vehicle would not amount to a relevant interruption. Lewis v Thomas [1950] 1KB 438.

17. Bearing in mind these criteria it seems to me that the inspector was entirely justified on the evidence before him in concluding that there was no interruption of the kind envisaged by the section.

Intention to dedicate by the owners of Forest House Estate.

18. Whether sufficient evidence has been adduced of an intention not to dedicate is a question of fact and the finding of the inspector can only be overturned on Wednesbury grounds: R v Secretary of State ex p Cowell [1993] JPL 851, 856.

19. The Inspector found at paragraph 39:

"I believe that the use by walkers and horse riders was such that Mrs Llewellyn, the landowner for virtually the whole period of interest, was fully aware of it."

He also said at paragraph 46 that the number of testimonies of Mrs Llewellyn having, in the relevant 20 years, greeted riders and walkers and even walked with some of them could not be put down to all of them having been her particular friends.

20. The matters relied on as evidence of an intention not to dedicate were the erection of a gate and a "private" sign at the entry to the Forest House Estate from Kingrosia Park. Other than Mr Thomas, users did not recall a gate on the order route. His evidence was that in mid 1977 Mrs Llewellyn was concerned about so many more people wanting to walk on her land. He therefore, as a goodwill gesture, agreed that the managing agents should instruct the Kingrosia Park builders to erect a wooden five bar gate where the track entered her land from between numbers 171 and 172 and also a private sign on a nearby tree. The gate was not, to his knowledge, to be locked and he could not say how long it or the notice remained in place. There had, of course, been unlocked gates on the previous route.

21. Ms Davies makes the point that the initiative for the gate (if there was one) appears to have come from the developers and that therefore its erection is not evidence of the intention of Mrs Llewellyn. Of more significance, in my judgment, is the absence of others who recollect the gate which, even on Mr Thomas's evidence, was unlocked. In my view it was, in the circumstances, entirely open to the inspector to conclude there was no evidence of any intention by Mrs Llewellyn not to dedicate.

Intention to dedicate by the owners of Kingrosia Park

22. Mr Jarman submits this question must be considered separately because the route has always had two separate owners. The inspector did not consider the issue. Had he done so he would have appreciated that these owners built over the route, acknowledging only Mrs Llewellyn's private right but not any alleged public rights. Their policy was to keep the public off the site and whether they succeeded or not doesn't matter. What is relevant is their intention and, whatever may have been the position later on, there was a clear intention not to dedicate in the early part of the period. Ms Davies' response is that the fact that the developers built over the original route indicates at most that (rightly or wrongly) they did not believe there was a public right of way over that part of the original route over which they built. It does not follow that they had no intention to dedicate the replacement route AB insofar as it crossed their land. The erection of an unlocked gate, if that is what they did, would not have prevented public access and is not indicative of an intention not to dedicate. Also, the inspector said that Mr Thomas's evidence that workman discouraged people from coming onto the site had an element of conjecture about it rather than personal knowledge of what happened. Furthermore Mr Thomas's evidence was that the discouragement related to the site as a whole and that it was directed towards safety and anti pilfering.

23. It is true that the inspector made no mention of the intention of the developers of Kingrosia Park not to dedicate, but given that their part of the order route was being used by the public for the whole of the 20 year period there simply was no evidence of any intention on their part not to dedicate. Evidence would be required of acts during construction but after May 1976. Building houses over the original route occurred before then. Not a shred of evidence was directed specifically to public user of the route. The fact that access to Forest House was maintained, submits Mr Walters, means that the evidence of intent in neutral. There is no reason to conclude that the owners did not intend public use of the access way provided.

Conclusion

24. The inspector was entitled to conclude that Section AB of the order route was in use by late May 1976. He was also entitled to conclude that the route was used without interruption for 20 years. There is no evidence on which he could properly have found an intention not to dedicate. For these reasons the appeal fails.

MR JUSTICE SCOTT BAKER: For the reasons given in the judgment which has been handed down, this appeal fails. Yes, well, now are there any applications?

MR JARMAN: My Lord, yes. First of all, could I deal with the application for permission to appeal? It is always a little bit difficult to put this in terms when judgment has just been given and, of course, I accept that I have to show that there is a realistic prospect of success on appeal. In order to demonstrate, in my respectful submission, that there is perhaps I can set out very briefly my main reasons for saying that there should be permission.

MR JUSTICE SCOTT BAKER: Yes.

MR JARMAN: The first is, as your Lordship has indicated in your Lordship's judgment, with respect, that it did not deal with the question of intention on the part of Kingrosia Park Estates. I know that your Lordship has gone on to look at the evidence and to come to your Lordship's own conclusion about that, but if one looks at the skeleton argument which I submitted as part of the case, I did rely upon the authority of Dyfed v Secretary of State for Wales which sets forth the principle that if an inspector does not give ample reasons to enable the court to determine whether his decision was right in law, the order should be quashed. In my respectful submission if the inspector did not deal with that issue that goes to the validity of the decision. That is the first point.

The second point was in relation to the issue of the photograph and when that was taken and whether there was, in May 1976, an established route upon which access could be made. Now I accept, my Lord, that that is a question of fact, but the inspector did deal with the question of the photograph and, in my respectful submission, accepted, perhaps implicitly rather than expressly, that that photograph was taken in 1977, in the summer. In my submission that does clearly establish when those properties were built --

MR JUSTICE SCOTT BAKER: Yes.

MR JARMAN: -- for which there could be a verified route. So for those reasons, in the main, I respectfully ask for permission to appeal.

MR JUSTICE SCOTT BAKER: Yes. Now, what do the first defendant's say about this?

MISS CRAIL: My Lord, we oppose the application. We say that the two criteria for granting permission are not satisfied. Firstly, of course, there must be a real prospect of success, alternatively some other compelling reason why the appeal should be heard. Taking the second first we say that there is no point of law, principle or practice of general public importance involved here, nothing of general application emerges. Your decision turned, as did the inspector, on the evidence and facts particular to this case.

Returning to the question of whether there is a real prospect of success, the criteria for success of an appeal are either that your Lordship's decision was wrong or procedurally unjust and there is no suggestion of the second.

As to the first, we, of course, submit that your Lordship's decision was plainly and obviously right, but say that this is the sort of case where the Court of Appeal is very unlikely to interfere. The issues before your Lordship are whether the inspector was entitled to reach the conclusions that he did and make certain findings of fact on the evidence before him.

The assessment of evidence is a matter for the primary tribunal of fact; that is the inspector. His decision has already been subjected to a thorough review by your Lordship and your Lordship has also looked at all the evidence in relation to the first point in respect of which my learned friend made his first submission.

The Court of Appeal are two removed from the evidence. The claimant would, in effect, be asking it to hold that your Lordship's conclusion that the inspector was not unreasonable in reaching his conclusions was itself unreasonable. We say that is far too high a hurdle for the claimant to have a chance of surmounting. We also say it would be analogous to almost having two appeals. One could compare it to having an appeal from the County Court to the High Court to the Court of Appeal, which, of course, nowadays is an exception on the case and we say there should be an end to this particular litigation.

MR JUSTICE SCOTT BAKER: Thank you very much, Miss Crail. Now what about the second defendant, Mr Walters?

MR WALTERS: My Lord, I support those submissions made by the first defendant. The issues were ones of fact, indeed, for the inspector and that the assessment by your Lordship thereafter as to his reasoning and the evidential basis, the decision of your Lordship is based upon the facts.

Turning quite specifically to the two grounds, the first of those was the intention of Kingrosia Park not to indicate any failure, as we submitted at the original hearing, to address that specifically, was the falsity of any evidence adduced by the claimant, as is in these proceedings, that could relate to that intention. So there really are no facts upon which the decision could be overturned on that basis. As to the photograph and the existence of a route, with respect your Lordship has dealt with that and the point of precision fully in the judgment.

MR JUSTICE SCOTT BAKER: Well, do you want to add anything, Mr Jarman?

MR JARMAN: No, thank you, my Lord.

MR JUSTICE SCOTT BAKER: No. Leave to appeal is refused and I do not think there are grounds in this case. It is a matter for the Court of Appeal to decide. Now what about costs?

MISS CRAIL: My Lord, there are two applications for costs; one on behalf of each defendant.

MR JUSTICE SCOTT BAKER: Yes.

MISS CRAIL: The Council asks for its costs to be ordered to be paid by the claimant on a very straightforward basis: firstly, the Council was on the winning side and the general rule, of course, is that a successful party is awarded its costs against the unsuccessful party or parties. That is rule 44.3(2)(a). There is no question here of a partial victory. Your Lordship found against the claimant on each of its grounds of challenge to the Inspector's decision and I think it is fair to say, although I was not, of course, at the original hearing, I think it is fair to say that your Lordship accepted all of the submissions that were made by Miss Davis on behalf of my client at that hearing.

MR JUSTICE SCOTT BAKER: Yes.

MISS CRAIL: Now Mr Jarman, on behalf of the claimant, I submit, would have absolutely nothing to say in answer to our application if the Council were the only defendant, but I anticipate that he is going to say that his client should not be ordered to pay the two sets of costs to both the Assembly and to my client, and he wishes to refer to the Bolton Metropolitan District Council case [1995] 3 PLR. Your Lordship is probably well familiar with that, the matter of the Manchester Ship Canal and the House of Lord's decision and, my Lord --

MR JUSTICE SCOTT BAKER: Yes.

MISS CRAIL: -- I brought along the two versions of that, the Weekly Law Reports version and the version in the Journal of Planning Law which Mr Jarman asked me to bring for the commentary --

MR JUSTICE SCOTT BAKER: Yes, thank you.

MISS CRAIL: -- if I can hand them up. My Lord, I have a number of points to make in answer to that, but it might be leaping before I come to the start to make them before you hear what Mr Jarman has to say.

MR JUSTICE SCOTT BAKER: Yes, what do you say about -- you want the costs assessed at £7,198.95, do you?

MISS CRAIL: My Lord, we leave it to your Lordship to decide whether it is a fit case for summary assessment and if there is sufficient time when we are finished arguing about the principles, if your Lordship is minded to do it in that way that is the amount for which we ask.

MR JUSTICE SCOTT BAKER: Well, we shall come back to that, shall we? So you are asking for your costs, perhaps I better then hear what the second defendants have to say. Mr Walters?

MR WALTERS: My Lord, there is an application for costs and again it would follow that there be an application for those to be summarily assessed. As far as the basis is concerned, first obviously being the successful party and the discretion which has been referred to to be exercised in the normal way and secondly, as far as the National Assembly for Wales is concerned, that they are, of course, a respondent who must be named in accordance with the rules. It is the reasoning of the Inspector appointed by the National Assembly which formed the basis of the application and, therefore, not only are they a statutory respondent, they are a necessary respondent to put the reasoning and explain to the court the position in the decision letter.

MR JUSTICE SCOTT BAKER: Well, why could one set of counsel and solicitors not have covered both?

MR WALTERS: The difficulty with that is the question of whether there are any evidential matters which are not contained within the decision letter, which would be relied upon by the party who was calling evidence at the first proceedings. The scope of the National Assembly, and as the statutory respondent as termed within the Rules of the Supreme Court, Rule 94, is to deal with the reasoning as adopted in the decision letter. That is not necessarily the same as looking at all of the evidence and the balance for it because it is the limited powers of review where the decision is said to be defective for the stated reasons.

MR JUSTICE SCOTT BAKER: Well, I understand that you have different interests, but why could one set of counsel and solicitors not have covered both?

MR WALTERS: Well, the reasoning for that, we say, is that first of all, if it is one, it is the National Assembly who should be the party who appears and it should be the solicitors instructed on their behalf and their choice of counsel. That would follow the ordinary practice, that they would always appear and we look most particularly at planning cases where it is the government department who will be the respondent and have responsibility for the carriage of the response. So that answers the first question as to why it should be, in this case, the second respondent as named. They should have been named the first respondent and your Lordship will recall that in the substance of the objection it was, of course, the National Assembly through me who opposed first. So that would be the ordinary rule it would follow.

So the question to be asked is why is there additional representation by the County Council? And we would say that the support for this general approach in the case just referred to, the Manchester Ship Canal case, I am looking at the Journal of Planning Law Reports at page 301, and your Lordship will see that subparagraph (1) on that page which says quite simply that the following propositions might be supported:

"(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement with other parties, or by further order of the court."

It then goes on to deal with the question of developer, against their proposition that the Secretary of State's, in this case the National Assembly's, costs should be paid and should not be apportioned. My Lord, if you say there is a general principle that there is to be a difference which is important to observe between the decision maker who has to hold the balance between competing evidence at the inquiry and the position of the person who supported a particular view and called evidence. And, therefore, in principle, it is for the Council to justify its stance, rather than for the National Assembly, in this case, to seek to justify why it was required to attend.

MR JUSTICE SCOTT BAKER: But it just seems to me that it might have been a practical solution for both defendants to have got their heads together and said 'Well, why can we not have one set of representation?', and save the costs in that way?

MR WALTERS: My Lord, that is the second question, we would submit, and we would say it is on the second -- the Council, actually named as first respondents, to undertake that, rather than the National Assembly, who are undoubtedly a proper respondent. If their reasoning is different then the Council can justify that. In the event, there was no approach, as I understand it, from the Council to the National Assembly and we say that the ordinary practice that a tribunal principle is that the National Assembly, the Secretary of State, as a necessary named respondent would be entitled to its costs.

MR JUSTICE SCOTT BAKER: Yes. Well, I better hear what Mr Jarman says.

MR JARMAN: My Lord, first of all, I wholly accept that the claimant must pay one set of costs, that is clearly the case and I do not make any submission about partial victory or anything like that. So to that extent I accept the submission made by my learned friends. I will not say anything about the detail for the moment and I am not going to say anything about who should pay. The point for the claimant is there should only be one set of costs and the Bolton case makes it quite clear, in my submission, that that is the normal rule. My learned friend for the first defendant refers to the normal rule being that the loosing party should pay and that is quite right. But there is also a rule that the loosing party should pay only one set of costs unless there are exceptional circumstances.

Now, in my submission, there are none in this case. If you look at the Bolton decision, as reported in the Journal of Planning Law, it makes it quite clear that there should be exceptional circumstances. We must bear in mind that in that case it was the developer who was supporting the Secretary of State for the Environment, so they were on the same side in that case. But as Lord Lloyd says in the case of Wychavon District Council the Court of Appeal costs doubt on the previous practice to award two sets of costs. The Court of Appeal held correctly, says Lord Lloyd, that that was wrong.

Then we come on to look at the principles laid down, my learned friend refers to the first one, but, secondly, it says that "the developer", and one must bear in mind that was the person or the party who was supporting the Secretary of State,

"...will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he had an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case."

In awarding two sets in that case it was made quite clear that there were three points which made it an exceptional case. First, the case raised difficult questions of principle arising out of a change of government policy; secondly, the scale of development and the importance of the outcome for the developers were of exceptional size and weight; thirdly, it was an unusual case in the sense that the opposition came not from the local authority but from eight neighbouring authorities. None of those principles are applicable here.

In the commentary on page 302, in the final paragraph beginning "secondly", what it says is that something more must be shown than in protecting an interest. It is still not entirely clear what must be shown, where the arguments put by the developer are identical to those put by the counsel for the Secretary of State, and the developer has trailed in his wake then it would seem clearly unfair to burden of the local planning authority with two sets of costs.

My Lord, in my submission that principle applies equally where the claimant is the developer. There were no separate arguments at all put by Miss Davis, I do not seek to criticise the way she presented the case in any way, but she simply repeated the arguments put on behalf of the National Assembly. It does not necessarily mean that there should have been joint representation, but the Council could and should, my Lord, rely on the Secretary of State for all relevant arguments which, in fact, occurred. In my submission, it would be unfair to burden the claimant with two sets of costs.

MR JUSTICE SCOTT BAKER: Thank you very much. Well, now I better then hear from Miss Crail as to why she says her clients were justified in being represented here.

MISS CRAIL: My Lord, if I could begin by reminding your Lordship of what your Lordship probably needs no reminding. The first point is that Bolton expressly lays down no hard and fast rule. Costs are in the discretion of the court in each and every case. And Bolton emphasises that at, looking at the Weekly Law Reports version, your Lordship will find it at page 1178, where Lord Lloyd says:

"What then is the proper approach? As in all questions to do with costs, the fundamental rule is that there is no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule."

Your Lordship is familiar with Rule 44, with the discretion that that confers on the court and your Lordship will also have in mind that the reasonableness of the party's conduct is one of the important factors to have in mind. Your Lordship will also be aware that your Lordship has power to import a part of a party's costs.

MR JUSTICE SCOTT BAKER: Yes, but was there any correspondence or suggestion that any points that your clients needed to be made could be made by counsel for the National Assembly?

MISS CRAIL: My Lord, the point was only dealt with in correspondence, it only arose at a very late stage in the proceedings, in fact in 5th March, I think, which is four days before the hearing. My lord, if I could take the proceedings in stages?

MR JUSTICE SCOTT BAKER: Yes.

MISS CRAIL: Starting with the issue of the claim form, and the first point I would make is that the claimant chose its defendants, it chose to make the Council one, and the lead first defendant at that. It did so voluntarily and not at the Council's request, and obviously the claimant took the view that the Council was a necessary and proper defendant. It might have said, as Mr Walters now says, that it was the Assembly's decision that we are challenging, we will make the Assembly the only defendant. We do not need to join the Council. But it is far too late now, in my submission, for Mr Jarman to be heard to say that. It was obvious and foreseeable that if the Council was joined as a defendant it could defend the proceedings and incur some costs in so doing. We would say, 'What else did the claimant expect?' .

The next point I would make is that the Council cannot be criticised for having taken the initial steps of filing the acknowledgment of service in the case of intention to defend, which is in the trial bundle at pages 12 - 13, or for filing the evidence that it filed in the shape of Miss Richards' statement, and your Lordship may remember that is at trial bundle pages 37 and following. Miss Richards exhibited some essential documents which had to be before the court for the purposes of these proceedings, notedly the modification order under challenge and the decision letter of the inspector, and also important witness statements, particularly those of Mr Collins and Mr Thomas. Your Lord will no doubt recollect and we would say it is quite surprising that the claimants did not exhibit those to their statement and it is notable also, I ask your Lordship to note, that the Assembly did not do so either. Someone had to do it, we say my client did it and should have the costs of doing that, and there is no duplication here, in any event, because that evidence was not put in by anybody else.

MR JUSTICE SCOTT BAKER: Yes.

MISS CRAIL: Going to the next stage as to the preparation of the skeleton argument, which really is the next stage at which costs were incurred, the National Assembly had not shown its hand so far as concerned either whether it intended to defend the proceedings and we have seen no acknowledgment of service indicating intention or no evidence or what points it was going to take, or what arguments, what authorities, it was going to cite.

The first indication of that was on the production of Mr Walter's skeleton argument at, I think, the 11th hour. It is dated 5th March and I believe that was the last date for producing that document 14 days before the hearing and it was sent to Miss Davis direct on 7th March. By that time, of course, the counsel for the Council had to have prepared her own skeleton argument and the cost of that had to be incurred. We say the Council could not be criticised for doing that because until that was seen there was a possibility, firstly, of the Assembly not defending the proceedings or not taking all the points which we say it was proper and necessary to have taken against the claimant's case, and counsel, had it waited any longer to see that, would have been out of time.

Then we say the question arises of what would have happened if the Council had not been represented at the hearing, if it had dropped out of the proceedings at that stage. Then the possibility would have arisen that the Assembly might have lost and refused to appeal, which is exactly what had just happened in another case R v National Assembly ex parte Robinson. Now, in that case, my Lord, the Council had not been allowed to appeal because it had decided not to appear at the hearing below and left it to the Assembly to conduct the case. The Council was very mindful in appearing at this hearing of what Buxton LJ had said in that decision and it was very influenced by its anxiety to preserve its position with regard to a possible appeal and it is therefore, on the forms, a dilemma. If I can show your Lordship the decision of the Buxton LJ in that case --

MR JUSTICE SCOTT BAKER: Yes, thank you.

MISS CRAIL: -- your Lordship will see the details there. If one goes to the first page one can see at paragraph 3 a summary of the background. Briefly, the position is this: Swansea wishes to complain of a judgment delivered by Richards J in proceedings to which the parties, the only parties, were the applicant in the main proceedings, Mr Robinson, and the National Assembly. Proceedings concern whether a footpath on Mr Robinson's land should be deleted from the map. Richards J held that there was no material on which you could act to support the presence of that footpath. Paragraph 4 makes clear Swansea were not party to the proceedings before Richards J. They were not served by Mr Robinson with the original application for permission to apply for judicial review because that decision was a decision of the National Assembly for Wales, effectively on appeal, in which Swansea was the operative local authority interested, but was not the decision maker themselves.

MR JUSTICE SCOTT BAKER: Yes.

MISS CRAIL: Paragraph 5 says it is a matter of controversy as to whether Mr Robinson should have served proceedings on Swansea. He did not. He did not make them a defendant. He did send a notice of the proceedings to them and the Council took no action on that. The matter is quite complicated because it was lost internally, and was not brought to the attention of the proper officer. But I think I can skip paragraph 17 to save time. Buxton LJ says Mr Horton told -- the person who made the witness statement in support of the application for permission to intervene and for appeal:

"Mr Horton...told me...even if he had been aware of these proceedings on 8th February, as he properly should have been if his authority had dealt with the matter correctly..."

Just pausing there he had become aware of them but by telephone message from the Treasury solicitor later on.

"...he would not have intervened in them. The most that would have happened would have been that someone would have gone along with effectively a noting brief. He was content to leave the matter in the hands of the National Assembly for Wales, assuming that the National Assembly for Wales had common cause with his authority.

While I understand why that decision was taken, that is a decision that affects the structure and nature of the proceedings. I have not the slightest doubt that if Swansea had turned up before [the judge] and asked to intervene, even only in a formal way by simply associating themselves with the arguments of the National Assembly for Wales, the learned judge would have permitted them to do so. That was a course that was open to them; that was a course they chose not to take. In those circumstances, I cannot think that it is right that they can now intervene at the Court of Appeal stage and, having made a conscious decision not to appear below, now ask to appeal a decision that the party in whose hands they chose to put the conduct of the case decided not to appeal.

I quite understand why a local authority does not wish to engage in litigation that is, in its view, redundant. But at the same time, having made that decision (for good operational reasons, no doubt) I am afraid I am not prepared...to allow Swansea...to intervene now..."

MR JUSTICE SCOTT BAKER: Yes.

MISS CRAIL: Paragraph 21:

"Mr Lawrence suggested to me that I should approach the matter rather as sometimes planning enquiries are approached, where interested parties do not formally appear before the inspector to put in submissions or evidence but leave it to the planning authority to deal with the matter, and they sometimes thereafter are able to appeal against the decision. That seems to me, however, to be a different case. We are concerned here with litigation, and litigation in the Crown Office and appeals from it. Although there may be cases where a party who has taken a conscious decision not to intervene in case below can nonetheless come to this court, I do not...regard this as being such a case."

My Lord, there is a different in that case, of course, because Swansea there was not a defendant. It had to apply for leave to intervene, but we say that the council could not have been in a stronger position in that case if it had been a party and had chosen, taken a conscious decision, not to participate in the proceedings. If it had not appeared at the hearing below, in this case, we say Buxton LJ's reasoning would have applied with equal if not greater force. The message of Buxton LJ is 'you do not take part at first instance --

MR JUSTICE SCOTT BAKER: At your peril.

MISS CRAIL: -- with another party at your peril', my Lord, you have taken the words right out of my mouth. In that dilemma, my Lord, I say that my client did not act unreasonably in conducting the case for itself and appearing at the hearing for itself. Buxton LJ mentions the possibility of the Council having associated itself with the Assembly's argument but, of course, my Lord, you cannot associate yourself with another's arguments, in my submission, until you know what they are, which is, of course, not until you see the skeleton argument, at the earliest. And until you hear them in open court you do not hear how they are developed.

Furthermore, we say you cannot associate yourself with them save by appearing at the hearing to say 'My Lord, we associate ourselves with the argument of the Nation Assembly'. But if one does take that course, we say, the earliest stage which you can take it is at or just before the hearing. You cannot say in the acknowledgment of service, for example, 'we had intended to contest the action and we give notice that we will associate ourselves with the arguments to be advanced on the part of the National Assembly for Wales if any? So, my Lord, I say that my client, in that dilemma, acted reasonably and did what it could and should have done to preserve its position on appeal.

The next point I would wish to make is as to the contribution made by Miss Davis at the hearing and the assistance she accorded to your Lordship. As to that your Lordship will be the judge and I make no submissions on that but I simply mention the point and I will, however, say that your Lordship does refer to a number of points in your Lordship's judgments specifically to submissions made by Miss Davis and there are some extracts of her skeleton in the judgment, particularly in paragraphs 15-18 and 22.

Now the suggestion that the counsel for the Assembly could have been or should have been jointly represented, my Lord, we say that that was simply inappropriate. Mr Walters can, of course, speak for himself, and no doubt will, but I would surmise that the Assembly would be no more comfortable with joint representation than the Council and the Treasury Solicitor who certainly and expressly ruled out joint representation at solicitor level in a letter to the claimant's solicitors dated 16th March. The 15th March was when the claimant first said 'Why is there joint representation?' Having received two skeletons arguments. I would hand up that letter. It is the top paragraph on the second page.

MR JUSTICE SCOTT BAKER: Thank you. Yes.

MISS CRAIL: Your Lordship will see there that the Treasury Solicitor says:

"I note your concern on the telephone. The Treasury solicitor is not intending to represent both respondents. This would involve (inaudible), I repeat the Treasury Solicitor could only ever represent either the Secretary of State or the National Assembly. It is not possible to represent the Local Authorities as well."(Quote unchecked)

So, at that stage, my Lord, it is completely out of the question. As to whether they could have instructed counsel, the same counsel, again, we would say that it would be an inappropriate thing to do.

My Lord, it happens that in this particular case the Council and the Assembly were taking a similar stance, but there are many other instances, generally speaking, with potential and actual conflicts between the Assembly and the local authorities in its areas, including Swansea. For example, at the earlier stage of these proceedings when the inspector was appointed by the Assembly to decide whether or not to confirm the Council's order, the inspector at that inquiry had to decide between rival submissions which were advanced on an adversarial basis by the Council on one side and by Mr Jarman's client on the other. Miss Richards who has conduct of this litigation on behalf of the Council, actually argued the case for the order in front of the Assembly's inspector on an adversarial basis and I would respectfully submit that it would not be altogether proper for her now to be instructing the Assembly's counsel in these proceedings; that is one example. The Robinson case is just another example of how conflict could arise. Initially Mr Robinson asked the Assembly to direct the Council to make an order that the Council had refused to make and we say it is right and proper that the Assembly and the Council should, in general terms, maintain a distance from one another and should not do anything which might give the appearance to the public that they are in any way being, as it were, hand in glove, that they should at all times appear to be impartial. The Assembly has to maintain impartiality and distance from the Council whose decisions it has to review from time to time, and whose orders it has to decide whether or not to confer. Also there is the question of the Assembly having to have regard to wider policy questions than just the Council. They will not necessarily always see eye to eye.

Those are general points and turning now specifically to Bolton as my final point. I already said Bolton does not lay down any hard and fast rules, but there are a number of other points to be made in the Bolton case, again if I can refer to the Weekly Law Reports. I have marked it up. My Lord, the law, it says, in propositions (1), (2) and (3), I would draw your Lordship's attention to (3) where he says:

"(3) A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have crystalised.."

MR JUSTICE SCOTT BAKER: Yes, well I have read that and I am familiar with Bolton.

MISS CRAIL: And, my Lord, in this case, of course, we are at first instance and the skeleton argument did not -- it is not until the skeleton argument stage or the first hearing stage that the issues are crystalised and we say that is this case. And, of course, I remind your Lordship that your Lord has powers to award costs up to a certain stage. I would draw your attention also to the passage that has been cited to your Lordship already about the aloofness question and that goes back to my point about the Assembly and the Council maintaining a distance from one another. We say it is entirely right and proper that they should do so and joint representation would be inappropriate in any case. My Lord, those are my submissions.

MR JUSTICE SCOTT BAKER: Thank you. Well, I come to the conclusion that the claimants should pay the costs of the National Assembly and two thirds of the costs of the Swansea Council. I have listened with care to Miss Crail's argument and I think there is force in the point that the claimant's chose to join her clients as defendants. However, it seems to me that where parties have an apparent or possibly similar interest in defending proceedings it is highly desirable that there should be proper communication between them so as to avoid any duplication of unnecessary costs, and in this case I can really see no reason why one counsel could not have presented the argument on behalf of both defendants because I have been unable to detect any conflict of interest at all between them on the particular facts of this case. It is in those circumstances that I have decided that the costs of the Swansea Council to be paid will be limited to the figure of two thirds.

Now what is the position about me assessing the costs today? I have had a statement, Miss Crail, from your clients, but I have had nothing from the National Assembly.

MISS CRAIL: Your Lordship should have had because I have, if I could hand that up?

MR JUSTICE SCOTT BAKER: Yes. Now, this is -- whose costs are these? These are the National Assembly's, are they?

MISS CRAIL: They should be.

MR WALTERS: My Lord, I am grateful that those were handed to your Lordship. They are present here and my instructing solicitor is there to hand in any copies if there is any mistake as to that.

MR JUSTICE SCOTT BAKER: Yes. So you are asking for £5,652.85 to be assessed. Correct?

MR WALTERS: My Lord, that is the application.

MR JUSTICE SCOTT BAKER: And as far as Miss Crail is concerned she is asking for £7,198.95?

MISS CRAIL: My Lord, there is one point I do note about Mr Walter's statement of costs, or the Treasury Solicitor's, which is that there is no VAT on counsel's fees to all appearances, whereas that is an element included on ours. It accounts for some of the difference.

MR JUSTICE SCOTT BAKER: I see. Now what do the claimants say about assessment, summary assessment, in this case?

MR JARMAN: My Lord, I do have some detailed comments to make on both sets of costs.

MR JUSTICE SCOTT BAKER: Are you asking for me to summarily assess or are you contend for a detailed assessment?

MR JARMAN: I would be contend for a detailed assessment.

MR JUSTICE SCOTT BAKER: Yes, and since your client is paying --

MR JARMAN: Yes.

MR JUSTICE SCOTT BAKER: -- most of them. Well, I think in the circumstances of this case I am going to order a detailed assessment unless anybody strongly argues otherwise.

MR JARMAN: I am grateful.

MR JUSTICE SCOTT BAKER: Anything else?

MR WALTERS: No, thank you, my Lord.

MR JUSTICE SCOTT BAKER: Well, I am very grateful to everybody for their assistance. I think this is the first judgment, certainly of the Administrative Court, that has been handed down by video link. It seems, as far as I can see, to have worked satisfactorily. I do not know if anybody else has any comments?

MR JARMAN: Well, my Lord, certainly and being in Cardiff we are grateful for your Lordship for accommodating us in this way. It certainly makes it a lot easier for us down in the provinces.

MR JUSTICE SCOTT BAKER: I think the only comment I could make is that if the video could be reset so that you did not keep popping up from behind the judge, it might be slightly easier, but I do not think that has caused any problems. Thank you very much.