Case No: 0224/2001
Neutral Citation Number: [2001] EWHC Admin 565
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday 20th July 2001

B e f o r e :

THE Hon. MR JUSTICE COLLINS 

	Persimmon Homes (Thames Valley) Ltd	Claimant	
	Taywood Houses Ltd		
	Bryants Homes Southern Ltd		
	    Garden Villages Partnership Plc 		
	v		
	North Hertfordshire District Council	Defendant	
	Secretary of State for the Environment, Transport and the Regions	Interested Party	

- - - - - - - - - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - -

                  Robin PURCHAS Q.C. &  Douglas EDWARDS (instructed by  Davis & Partners for the  Claimants)
Timothy MORSHEAD (instructed by  North Hertfordshire District Council for the Respondent )
David HOLGATE Q.C. (instructed by  Treasury Solicitors  for the Secretary of State)
- - - - - - - - - - - - - - - - - -

Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Collins:

1.	This claim was listed before me following directions made by Silber, J on 28 February 2001 as an oral hearing for permission to apply for judicial review.  The decision at issue is that of the defendants made at a meeting on 19 December 2000 to withdraw the draft Local Plan No.3 for the replacement of “North Hertfordshire District Local Plan No.2”.   Notice of that decision was given by letter dated 22 December 2000 pursuant to Regulation 25(1) of the Town and Country Planning (Development Plan)(England) Regulations 1999 (1999 No.3280), (the 1999 Regulations) which, so far as material, provides:- 
	"On the withdrawal of a local plan ... or proposals for the alteration or replacement of such a plan, the local planning authority shall -
		(a) withdraw the copies of the plan or proposals made 	available for inspection ;
		(b) give notice in Form 8 that the plan or proposals have 	been withdrawn to every person who has made an 	objection or representation with respect to the plan or 	proposals; and
		(c) give notice by advertisement in Form 8. "
	The claimants submit that there is  no power to withdraw a local plan or proposals for the alteration or replacement of such a plan so that what the defendants purported to do was unlawful.  It follows that Regulation 25(1) is of no effect since no such withdrawal can take place.  Since Regulation 25(1) does not permit withdrawal but only deals with the manner in which such withdrawal can take place, it may be that strictly speaking it is not, even if the claimants are correct, ultra vires.  Nonetheless, it clearly recognises although it may not confer such a power and so it must follow that Parliament was wrong to permit it to be enacted.
2.	Because the claim involved an attack on the Regulations and the point at issue had important implications for the planning system generally, the Secretary of State indicated through the Treasury Solicitor that he intended to apply to be joined as a party.  That application was not opposed and I granted it.  Since all interested parties had attended and the point was limited to the construction of the relevant statutory provisions, it seemed to me that it would be more sensible to grant permission (since I had formed the view on reading the papers that the claim was arguable), to dispense with all subsequent procedural steps and to treat the hearing as the hearing of the claim.  All parties agreed to this and so I made the appropriate order.  This judgment therefore decides the claim.
3.	The claimants are members of a consortium who are interested in the development by the construction of housing on land to the west of the A1(M) Motorway.  In its Structure Plan Review covering the period 1991 - 2011, Hertfordshire County Council had allocated this land, at present green belt land which has not been developed, for large scale residential development to meet the anticipated housing requirements for the County.  The land in question is partly within the administrative area of Stevenage Borough Council (SBC) and partly within that of the defendants (NHDC).   NHDC and SBC each have to prepare local plans which are in general conformity with the Structure Plan (see ss.36(1) and 36(4) of the Town and Country Planning Act 1990 as amended (the 1990 Act).  There are existing plans so that the obligation  is in fact to prepare proposals for the alteration or replacement of those plans (1990 Act s.39), but the different starting point has no effect upon the issues with which I have to grapple.  That obligation arose in the case of NHDC because, following the adoption of the Structure Plan Review, Hertfordshire County Council in April 1998 formally notified NHDC that its existing local plan was no longer in conformity with the Structure Plan Review (see 1990 Act s.35C).  NHDC accordingly resolved to prepare a replacement to its existing local plan and in February 2000 it placed the ‘Third review’ (i.e. the proposed replacement) on deposit in accordance with the requirements of the 1990 Act (see s.40) and Regulation 22 of the  1999 Regulations.  This made provision for 2600 dwellings on the relevant land.  There were about 3000 statutory objections to the deposit plan.  Following the initial deposit and the receipt of objections following the requisite publicity, NHDC had to consider all objections and decide whether to revise the proposals or any of them.  Thereafter the revised plan had to be placed on deposit (Regulation 24 of the 1999 Regulations).
4.	Since the housing development in reality constituted an expansion of Stevenage and SBC was concerned with part of the relevant site, it was anticipated that objections to the proposals as modified would be heard at a public enquiry (which is a necessary part of the process whereby local plans are eventually adopted) to be held in July 2001 jointly with those put forward by SBC for its replacement local plan.  Such a course was obviously sensible because it would save two inquiries covering the same ground.
5.	In March 2000 the Secretary of State issued a revised version of PPG3 relating to housing.  The covering letter announced that it:-   
	"... represents a fundamental change in planning for housing.  It introduces a new sequential approach which gives priority to the re-use of land  and buildings before developing greenfields.  It requires land to be used more efficiently and provides higher quality development.  It will require a new approach by local planning authorities, the development industry and all those involved in planning for housing."
	It is suggested in the preface to PPG3 that it will require early reviews of and alterations to development plans. 

6.	It is not necessary to go into the changes in any detail.  Mr. Purchas Q.C. for the claimants suggests that they are not as fundamental as has been suggested.  However that may be, NHDC reasonably believed that they required a radical reconsideration of its proposals.  In particular, there had to be a rigorous search for land for housing on brownfield sites coupled with what is called an urban housing capacity study to ensure that greenfield sites were used only when suitable brownfield sites were exhausted.  NHDC sought advice from leading counsel who, after considering what was needed following PPG3, stated:- 
	"... it cannot be rational to pursue non-compliant proposals to an inevitably hotly contested local plan inquiry a year hence, when the whole position can (once the urban capacity advice is issued) be re-assessed in accordance with PPG3."
	SBC received advice from another leading counsel who did not agree that it was necessary to withdraw its plan in order to carry out an urban capacity study (which he appears to have considered to be the only relevant extra step required by PPG3).
7.	NHDC considered a lengthy and detailed officers’ report which, among other documents, annexed not only the opinions of the two leading counsel to which I have already referred but also an opinion from Mr. Purchas Q.C., obtained by the claimants.  He concluded that the proposals should not be withdrawn but that the process should continue in the normal way, save that an updated urban capacity study should be undertaken.  He did not suggest that there was no power to withdraw the proposals.  NHDC decided on 19 December 2000 to withdraw the proposals.  There was an immediate threat of judicial review, initially on the basis that the officers’ report and so NHDC had failed to consider properly certain highly material issues.  But by 8 January 2001, the claimants’ solicitors indicated that any judicial review would be limited to the contention that no statutory power existed to permit a local planning authority to withdraw an emerging plan.  That is the only matter that has been argued before me and so, if there is power, the withdrawal cannot now be impugned.
8.	There is no express power to withdraw an emerging local plan.  The claimants are able to contrast this with the express powers to withdraw both a structure plan and a unitary development plan (UDP).  Part II of the 1990 act deals with structure and local plans which cover non-metropolitan areas.  Broadly speaking, structure plans contain a formulation of general policies in respect of an authority’s area (see s.31(2) of the 1990 Act) whereas local plans contain detailed policies which must be in general conformity with the structure plan (s.36(2) and (4)).  The split is because frequently (as in Hertfordshire) the structure plan will be the responsibility of the County Council and a local plan the responsibility of a District or Borough Council within the area of the County Council.  In Greater London and Metropolitan Counties the same authority will be responsible for both general and local policies and so only one plan is required.  This is called a Unitary Development Plan (UDP).  It comprises two parts.  Part I deals with general and Part II with local policies (s.12(2), (3) and (4)).  Thus the UDP combines structure and local plans.
9.	Power to withdraw emerging structure plans and UDPs are contained in ss.34 and 14 of the 1990 Act.  S.14, relating to UDPs, provides:-
	"A [UDP] may be withdrawn by the local planning authority at any time before it is adopted by the authority or approved by the Secretary of State and shall be withdrawn by the authority if the Secretary of State so directs."
	The consequences of withdrawal are then spelt out (s.14(2)) namely that copies made available and sent to the Secretary of State must be withdrawn and notification of such withdrawal must be given to any objector and s.14(4) provides:-
	"Where a [UDP] is withdrawn the copies of the plan shall be treated as never having been made available under s.13(2)."
	Section 34 deals with the withdrawal of structure plans.  It provides:- 
	"(1) Proposals for the alteration or replacement of a structure plan may be withdrawn by the local planning authority at any time before they have been adopted by them or the Secretary of State has approved them."
	Section 34(2) contains identical provisions to s.14(2) covering the consequences of withdrawal.  It is to be noted that the power of withdrawal is limited to proposals for the alteration or replacement of structure plans, but that was because it was recognised that by 1990 there would be no new structure plans since the obligation to prepare then had existed since 1968 and s.31 of the 1990 Act continued in force for any existing structure plan.  Section 14 applies to new UDPs.  It is applied by s.21 to alteration or replacement of UDPs and so proposals for such alterations or replacements can be withdrawn at any time before adoption (s.21(2)).
10.	The Secretary of State is given powers to call in all plans or any parts of them at any time before adoption.  Those powers are defined in terms which are in all material respects identical for each plan:see s.18(UDPs), s.35A (Structure Plans) and ss. 44 and 45 (Local Plans).  If he decides to call in, the process comes to a halt and he takes over.  He then has the power to reject or to approve to the exclusion of the local planning authority.  In the case of Structure Plans and part I of UDPs, the Secretary of State may (if one has not already been held) direct  the holding of a public inquiry (ss.20(4) and 35B(2));  in the case of Part II of UDPs he must (s.20(2)) subject to s.20(3).   In the case of Local Plans, he must normally give an opportunity for objectors to appear before an appointed person (s.45 (3)(b)) or a public inquiry (s.45(3)(c)).   Thus there are differences of detail but not, save as to the holding of inquiries  or the appointment of an independent person, of substance.
11.	Local plans must be in general conformity with the structure plan.  If any proposals are not in conformity, a statement to that effect must be made (s.46(2)(b)) and details of non-conformity given (s.46(3)).   Any such statement is to be “treated ... as an objection made in accordance with the regulations” (s.46(4)) so that a public inquiry will (subject to any call in by the Secretary of State) be required:  (s.42(1)).  Once all the procedures have been gone through, the local planning authority “may by resolution adopt proposals for a local plan or for its alteration or replacement, either as originally prepared or as modified so as to take account of (a) any objections to the plan or (b) any other considerations which appear to them to be relevant” (s.43(1)).   It is common ground that this means that the local planning authority may decide not to adopt any proposals so that the whole process will have to start all over again.
12.	I should also refer to s.50 which deals with joint structure and local plans.  S.50(5) and (6) provide as follows (as amended, somewhat inelegantly in the case of s.50(5)):-      
	"(5) Where two or more local planning authorities jointly prepare proposals for the alteration or ... and replacement of a structure plan under this section, all or any of them may withdraw them under s.34(1) and on their doing so all the authorities shall comply with subsection (2) of that section.
	(6) Where  two or more local planning authorities jointly prepare proposals for the making, alteration ... or replacement of a local plan -
		(a) ... they each have the duty imposed by s.40(2) ... of 	making copies of the relevant documents ...
		(b) it shall be for each ... to adopt the proposals under 	s.43(1) ... but any modifications ... must have the 	agreement of all those authorities."
	There is nothing said about withdrawal of local plan proposals.  This contrasts with the express power referred to in relation to structure plans.
13.	As a general rule, it is not desirable to investigate the statutory predecessors to a Consolidating Act: the provisions should be construed within the context of the Act: see R v Environment Secretary ex p. Spath Holme Ltd. [2001] 2 W.L.R. 15.  But this rule is not applicable if there is any ambiguity in the provisions which the court has to construe and in some cases even if there is no overt ambiguity the court may have, in order to understand the context in which the relevant provisions came to be enacted, to consider the legislative history.  Mr. Purchas submits that there is no ambiguity and that the absence of an express power to withdraw proposals in relation to a local plan alone means that no such power can be inferred.  Furthermore, there are, he submits, good reasons why such a power should be excluded.  A local plan is concerned with detailed policies and particular development proposals.  Thus individuals are likely to be more directly affected by local than by structure plans.  They should be given the opportunity to have their points of view considered at a public inquiry, even if at the end of the process the local planning authority decides not to adopt the proposals in whole or in part.  Furthermore, the Secretary of State may call in and individuals may seek to persuade him to do so and he can then take control of the proposals.  Since third parties will often make decisions based on the proposals there could be significant prejudice if the proposals could be withdrawn.
14.	I am bound to say it was not clear to me why the power to withdraw was required for structure plans and UDPs, but not for local plans.  All the arguments put forward by Mr. Purchas to deny the power apply with equal force to Part II of UDPs, but they can be withdrawn at any time before adoption and even if the Secretary of State has called them in.  Mr. Holgate Q.C. submits that Parliament needed to provide the express power to cover withdrawal when the Secretary of State had called in and had thereby taken control, but it is very difficult to understand why such power was considered necessary for Part II of UDPs but not for local plans.  The logic of that submission must lead to an acceptance that there is no power to withdraw local plan proposals once the Secretary of State has exercised his call in powers.  Since Parliament was perfectly capable of distinguishing between Part I and Part II of UDPs (see s.18(2) and (4)), Mr. Purchas’ suggestion that Parliament decided that the composite provisions of a UDP should be subject to the same powers as structure plans is not particularly persuasive.  The truth is that it is quite impossible to identify any sensible reason for a different approach to withdrawal of UDPs and structure plan proposals on the one hand and local plan proposals on the other.
15.	That of itself does not necessarily mean there is an ambiguity.  Mr. Purchas’ argument has the merit of simplicity.  It is also, he submits, supported by consideration of some provisions of the 1990 Act before it was amended by the Planning and Compensation Act 1991.  Section 40 enabled the Secretary of State to give directions, if he was satisfied that inadequate steps had been taken to publicise or to consult on proposals for  local plan, whereupon the authority must “immediately withdraw the copies of the documents made available for inspection”. S.40(4).    This was the only provision which referred to withdrawal in connection with a local plan, but it was repealed by the 1991 Act.  Since it referred only to withdrawal of copies of documents made available for inspection with a view to their replacement and not to withdrawal of the proposals, I do not find it helpful nor do I think it advances the argument put forward by the claimants.
16.	A lack of any apparent reason for the absence of an express power to withdraw proposals relating to a local plan should not by itself perhaps create an ambiguity.  Nor can the existence of Regulation 25 of the 1999 Regulations, since subordinate legislation cannot ordinarily be used to construe a statute and cannot create an ambiguity where one does not otherwise exist.  Nonetheless, it can in some circumstances be used as an aid to construction of its parent Act, in particular inasmuch as it may provide a parliamentary contemporanea expositio and may confirm a particular construction: see Hanlon v Law Society [1981] A.C. 124 @ 193-194 per Lord Lowry.  It is to be noted that the predecessor to the 1999 Regulations, those of 1991, came into force on 10 February 1992 at the same time as the 1991 Act.  And the same view as to the power of withdrawal has been taken administratively: see Paragraph 24 of the current Code of Practice which reads:-
	"The authority may withdraw a [local] plan at any time before it is adopted."
17.	Often the existence of a particular power given by one section of an Act will indicate that that power cannot be implied in another.  All will depend on the precise provisions of the Act: see British Waterways Board v Severn Trent Water [2001] EWCA Civ 276.  There are some signs that all may not be as simple and straightforward as Mr. Purchas submits.  Section 149 of the 1990 Act deals with land affected by planning blight and applies Schedule 13.  A person whose land is blighted may serve a blight notice on the appropriate authority a notice requiring it to purchase the land.  Paragraph 1 of Schedule 13 covers land which a structure plan indicates may be required for certain public purposes.  Notes to paragraph 1 include land which is  indicated in proposals for the alteration or replacement of a structure plan, but states that this will cease to apply inter alia when copies of the proposals have been withdrawn under s.34.  Paragraph 2 deals with land allocated to the relevant functions in a local plan or in proposals for its alteration or replacement.  As originally enacted, Note (2) disapplied the paragraph in circumstances where “copies of the plan or proposals ... have been withdrawn under s.41(4)”.  The repeal of s.41(4) led to the repeal of that note, but Note (3) remains, and  reads, so far as material:-
	"Note (1) [which extended the paragraph to proposals] shall ... cease to apply when -
		(a) the relevant ... proposals become operative ...; or
		(b) the Secretary of State decides to reject or the local 	planning authority decide to abandon, the ... proposals 	...”"
	Paragraph 3 covers UDPs and contains similar notes.  Note (2) disapplies Note (1) when the copies of the proposals have been withdrawn under s.14(2) and goes on to validate any blight notice served before such withdrawal since otherwise s.14(2) might invalidate it.  Note (3) is identical to Note (3) in Paragraph 2 set out above, but instead of ‘abandon’ the word ‘withdraw’ is used.  This drafting is curious.  The express power to withdraw UDPs no doubt explains the use of that word in Note (3) in Paragraph 3.  But there is no express power to abandon local plans.
18.	Mr. Purchas submits that the power to abandon only arises at the end of the process when the local planning authority may adopt the proposals.  If it decides not to adopt, it will abandon them and the use of the word in the note is limited to abandonment in the sense that the proposals are not adopted.  It is difficult to follow why the words “not to adopt” were not used if the intention was to refer to that stage of the proceedings.  It is also worth noting that in the Local Government Act 1985 (which abolished the GLC and the Metropolitan County Councils) provision had to be made for existing proposals.  Paragraph 23 of Schedule 1 to that Act reads so far as material;-
	"(1) Any proposals for the alteration ... or replacement of a structure plan which ... have not been approved by the Secretary of State shall be treated as having been withdrawn
	(2) ... any local plan or proposal for the alteration, repeal or replacement of a local plan which ... has not been adopted or approved shall be treated as having been abandoned ...".
	None of this suggests that there is any temporal limit on the use of the power to abandon.  It suggests on the contrary that the draftsmen believed that there is an implied power if not to withdraw to abandon proposals relating to a local plan which can be exercised at any time before adoption or approval.
19.	This means that there is an ambiguity and that it is not possible to say that the existence of the express powers to withdraw proposals relating to structure plans and UDPs means that there can be no similar implied power to withdraw proposals relating to local plans.  As I have said, Mr. Holgate has submitted that those express powers were needed to deal with the position when the Secretary of State called in the proposals, although he was unable to explain why a similar express power was considered unnecessary when local plan proposals were called in.  He relies on the fact that the power to withdraw in relation to structure plans was first enacted in the Town and Country Planning (Amendment) Act 1972 which by Section 2 added a new s.10B to the Town and Country Planning Act 1971 in these terms:-
	"(1) A structure plan submitted to the Secretary of State for his approval may be withdrawn by the local planning authority ... submitting it ... at any time before he has approved it ..."
	But this does not too my mind help his argument.  Until the authority submit its proposals to the Secretary of State, there is no need to do more than to publicise and to listen to representations.  The process of approval through publicity and an inquiry (if needed) did not begin until the proposals were submitted to the Secretary of State (1971 Act s.8).  Therefore there was no need for any power to withdraw before submission to the Secretary of State;  there was nothing to withdraw when the proposals were being developed by the authority.
20.	The concept of abandonment has long been recognised in the Regulations which have over the years governed the practice relating to development plans.  Thus Regulation 36 of the 1971 Regulations (1971 No.1109), found in Part VII headed:-
	"Procedure for the Adoption , Abandonment, Approval or Rejection of Local Plans"
commences:-
	Where a local planning authority adopts or abandons a local plan ...”
21.	In 1991, the draftsman seems to have believed that there was no difference between abandonment and withdrawal since the reference to abandoning proposals is replaced by withdrawal: Regulation 13(1) of 1991 No.2794, now Regulation 25(1) of the 1999 Regulations. 
22.	That, submits Mr. Purchas, is wrong.  He says that the reference in the earlier Regulations to adopting or abandoning and its position in them supports his argument that abandonment comes only at the end.  Further, he submits that if that is wrong, abandon and withdraw do not mean the same and proposals which are abandoned can nonetheless be called in by the Secretary of State.  Certainly an object which has been abandoned does not cease to exist and may be taken by another.  But that hardly applies to proposals: once abandoned, they are, like a game, given up and so cease to exist.  Thus  the consequences of abandoning and of withdrawing proposals are the same; they disappear.
23.	I have no doubt that it would be absurd to require proposals to be put through the statutory procedure including a public inquiry which is likely to be costly when the local planning authority know in advance that they will not be adopted.  I accept that this will only rarely happen and I do not doubt that local planning authorities should consider abandoning only if satisfied that the proposals cannot even if modified be adopted.  But it seems to me that the existence of the power is necessary to prevent carrying out expensive procedures for no sensible purpose.  An example was given in argument of an allocation in a local plan which depended on the construction of a major transport link.  After the local plan proposals are issued a decision is made not to build the link and this renders the relevant proposals impossible.  This has a major impact on the whole local plan and requires a fundamental reconsideration.  To go on to the bitter end with the proposals which have become impossible to adopt would clearly be ridiculous.  I bear in mind too that it would be strange if the local planning authority were required to continue to pursue proposals which it no longer wished to adopt.
24.	I recognise of course that the claimants have a real interest in the allocation which has been proposed and are anxious that it should be considered at an inquiry as soon as possible.   Delay will cost them, as will the need to deal with whatever proposals are now made.  But their interests and those of the objectors are protected by the procedures which will be applied to the new proposals.
25.	The need for this claim is no credit to the draftsman of the 1990 Act as amended.  It seems that he has, perhaps because of the 1985 Act and the 1971 Regulations, assumed that the power of abandonment did not need to be expressly conferred.  Mr. Purchas’ complaints that the consequences of an implied abandonment or withdrawal have not been identified is unfounded: Regulation 25 deals adequately with them.  Although the Regulation and so NHDC’s letter refer to withdrawal, in my judgment that is immaterial since the effect of an abandonment and of  withdrawal is the same.
26.	It follows that for the reasons I have given this claim must fail and be dismissed.

MR JUSTICE COLLINS: For the reasons given in the judgment, which has been handed down, this claim will be dismissed.
MR MORSHEAD: I am grateful, my Lord. As well as dismissing the claim, will your Lordship say the claim is dismissed with an order the that claimant pay North Hertfordshire District Council's costs of the claim?
      My Lord, I appreciate there are now two respondents before the court, and in the events that have materialised it was the second of those respondents that took on the burden of the advocacy.  Your Lordship will appreciate that there were two discrete interests at issue in this litigation: the one immediately under attack, and one the subject of the claim itself of my Council's decision.
MR JUSTICE COLLINS: If there is a question of only one set of costs, it is normally the defendant who gets them, unless there is very good reason why someone else should get them.  So you are, subject to anything Mr Purchas may say, in the prime position to get your costs whether or not the Secretary of State gets his.
MR MORSHEAD: I am grateful.  Perhaps I can reserve any I might have?
MR JUSTICE COLLINS: Yes. 
MR ABRAHAMS: My Lord, the Secretary of State does seek a second order for costs in this matter.  Your Lordship will be familiar with the guidance given by the House of Lords in the Bolton decision.  I have handed up a short note of the relevant passage in Lord Lloyd's speech. Obviously that case dealt with the rather different circumstances where a developer joins the Secretary of State in defending a decision to grant planning permission on the appeal.  However, I submit, that a similar approach should be taken in this case, and a second set of costs ought to be awarded where there is a separate issue which is requiring representation.  Here clearly, while North Hertfordshire was concerned to defend its particular decision in relation to the local plan, the Secretary of State needed to consider the position in relation to the planning system as a whole.
MR JUSTICE COLLINS: It actually could be said, I suppose, that I may have to come back to Mr Morshead, here the only real interest was the Secretary of State's, once there was no attack on the actual decision by North Hertfordshire.
MR ABRAHAMS: My primary submission is that there should be an award for two sets of costs.
MR JUSTICE COLLINS: Yes, I follow that.
MR ABRAHAMS: My secondary submission is that if there is  to be only one set of costs, then those costs ought to be the Secretary of State's costs and not the District Council's costs.
MR JUSTICE COLLINS: You mean on the basis that, as I say, there was no attack on the factual decision, if I may put it that way, of the District Council, but only on the legal background which is much more your concern than theirs?
MR ABRAHAMS: The attack was really on an assumption that had under girded the planning system for many years and that was preeminently a matter for the Secretary of State to deal with rather than North Hertfordshire District Council.  So, on the question of a separate issue, I do say there was a separate issue here, the implications of the challenge to the planning system as a whole.  Similarly, on the second limb of the Bolton test, an interest requiring separate representation. Again, the Secretary of State's interest was not the same as the North Hertfordshire Local Plan.
MR JUSTICE COLLINS: I would be surprised if Mr Purchas seeks to argue that there was not a need for the Secretary of State to come and argue the point, which is of course of interest to him because the regulations would have been ultra vires, or if not ultra vires at least infective if Mr Purchas was right. 
MR ABRAHAMS: Absolutely, my Lord.  We say there was a separate interest.  It was, essentially, the integrity of the planning system as a whole.
MR JUSTICE COLLINS: I think that is a bit hyperbolic, but yes.
MR ABRAHAMS: I trust that the Secretary of State's submissions were helpful to your Lordship on that question. Thirdly, the Bolton decision says that the second set of costs is more likely to be awarded at first instance rather than in the Court of Appeal.  In this case, the Secretary of State declared its interest early in the proceedings.  We wrote to the claimant on 5th April 2001, that is at page 320, setting out very clearly the grounds on which we were going to make submissions in this claim and, notably, on 12th April, this is at page 321 of the bundle, the claimant's solicitors wrote back and gave their permission.
MR JUSTICE COLLINS: Yes, it was not up to them to give permission.  They did not object.
MR ABRAHAMS: Gave their consent, I am sorry, my Lord, to the Secretary of State being joined as a party.  So they knew at that stage, in my submission, that they were at risk as to costs and as to an order of having to pay the Secretary of State's costs.  They took a commercial decision to proceed with this litigation nonetheless. 
      For those reasons, I submit that there ought to be a second set of costs.  If you are not with me on that point, I do take the point that you referred to a few minutes ago, which is that the direct attack on the District Council's decision was dropped.  The full force of the claimant's submissions was directed at the suggestion that the regulations were ultra vires and there was no expressed power to abandon them, and that was preeminently a matter which the Secretary of State had to take on board. We do submit that there should be a summary assessment this morning of those costs, perhaps.
MR JUSTICE COLLINS: Well, that we will come to in due course, if necessary. Mr Purchas, I think if I let Mr Morshead deal with the attack from behind him, so that you can then respond to both.
MR PURCHAS: My Lord, yes.
MR MORSHEAD: Thank you.  My Lord, of course the basis on which the attack was brought was always a vires attack, it is not a case that that basis changed after the commencement of the litigation.  So from the outset the applicants had a choice of targets and they choose my client.  They made that choice in January.  As early as the acknowledgment of notice in February‑‑‑‑
MR JUSTICE COLLINS: They had to, did they not, because I  mean it was your client's decision which they needed to set aside?
MR MORSHEAD: I accept that. I make no criticism of them for having taken that course.  But, having done so, my client at once alerted the applicant, in its acknowledgment of service, to the desirability of the Secretary of State being joined, and than took until April for the Secretary of State to be joined.  My Lord, of course that is some period of time, and within that time costs were incurring.
MR JUSTICE COLLINS: That is a separate point.  I think that there is a very strong case that you should have some costs.  The question I think really, is whether you should have costs after the Secretary of State comes on to the scene, and I do not doubt the costs of the hearing before me.  Mr Purchas will obviously develop his argument, but that at the moment seems to me to be the way that one should look at it.
MR MORSHEAD: After 12th April, when the applicants indicated their consent to the Secretary of State being joined, there continued to be two discrete interests at stake in my submission.  There was the substantive interest of my client in protecting its decision, it was the decision that was under attack. Albeit the attack was ‑‑ they drew into the equation questions of the  vires of the Secretary of State's regulations and the construction of the Act under‑‑‑‑
MR JUSTICE COLLINS: When you say "drew into it" that was the whole case, was it not, the be‑all and end‑all of the case as it was presented, and as they said it was going to be presented?
MR MORSHEAD: But the end goal of bringing in that material was to attack my client's decision not, as it were, to seek a declaration that the regulations were ultra vires.
MR JUSTICE COLLINS: No, I follow that.  But in a sense the attack on your client's decision was merely incidental to the argument that the regulations were wrong and that there was no power for your clients to do what they did.
MR MORSHEAD: My Lord, to say it was an incident of the question of vires, my Lord, is to give recognition, as it is right to do, to the fact that in order to get at my client's decision it was necessary to take that course.  But it remains the case, in my submission, that the substantive decision under attack ‑‑ Mr Purchas' only legitimate interest in bringing the application was because it had the concrete goal in mind of undermining the decision that my client had taken back.
MR JUSTICE COLLINS: But that is often the way where you  have an attack on a LPA's decision, sometimes the Secretary of State takes it over completely and the LPA does not need to attend.  Sometimes of course there is a need for both to attend. Sometimes the LPA takes the whole of the flack, as it were, because its decision does not involve any wider planning issues which the Secretary of State has a major interest in.
      There was nothing to stop you, was there, once you realised that this was the only issue, and once the Secretary of State was brought in, to say, 'We can now bow out, subject to you paying our costs up to now', and there may have been an argument about that, and leave it to the Secretary of State to deal with the argument?
MR MORSHEAD: My Lord, there is always a difficult judgment involved in cases like that, particularly where, as your Lordship has pointed out, the fact that an applicant has consented to the joinder of one party is not determinative of the issue.
MR JUSTICE COLLINS: No, of course.
MR MORSHEAD: Your Lordship will also have in mind that the hearing listed before your Lordship was still listed as a permission hearing.
MR JUSTICE COLLINS: That is true.
MR MORSHEAD: It may well have been that had events, as it were, in a technical and procedural level taken a  different course, there had been a short application hearing, it may have been appropriate at that juncture for my client to have taken stock and have said: 'All right, we will bow out now and leave the Secretary of State'‑‑
MR JUSTICE COLLINS: I take that point.
MR MORSHEAD: ‑‑'now we have seen the force of the arguments he is deploying we can rely on him to deploy them.'
MR JUSTICE COLLINS: Yes.
MR MORSHEAD: But, my Lord, at least until the permission stage, in my submission, it was right for my client to take the prudent course that it did adopt. My Lord, questions as to the reasonableness of the level of costs of course can be left over to a later date.
MR JUSTICE COLLINS: Yes, I am not concerned with that at the moment. I mean I may come on to that, but at the moment it is a question of whether costs should be awarded in principle.  I take your point on that.  You were really caught (if "caught" be the right word) by the decision of Silber J to stand the permission hearing over, whether or not others would have done the same is nothing to the point.
MR MORSHEAD: My Lord, my alternative submission is that if it is a case where for reasons, as it were, a  proportionality, I mean one set of costs should be awarded, then, in my submission, they should be my costs not the Secretary of State's.  For this reason, after all the difficulty that has given rise to this attack it is the responsibility of an Act of Parliament not my client and, to some extent, the Secretary of State's regulations thereunder so, to the extent that an equity falls to be decided‑‑‑‑‑
MR JUSTICE COLLINS: You mean because the draftsman did not get it obviously right you should not suffer?
MR MORSHEAD: That is right.
MR JUSTICE COLLINS: And it should be the Secretary of State who at least has some responsibility for the Act?
MR MORSHEAD: If there has been a victim, it has been my client.
MR JUSTICE COLLINS: Yes, that is a novel argument.
MR MORSHEAD: Unless I can help your Lordship further?
MR JUSTICE COLLINS: No, thank you, Mr Morshead. Mr Purchas?
MR PURCHAS: My Lord, if I may.  Can I say straightaway I plainly do not resist an order for a single set of costs. Can I say this, because it being a discretionary remedy, I hope your Lordship can bear in mind that from the very outset we made it clear that the single ground of attack was one in law, and I hope that prays in aid,  as it were, of applying the normal rule in the Administrative Court on judicial matters of where there is a challenge of awarding a single set of costs and, as a starting point, as it was plain from where we were coming.
      That is reinforced in this case but the original hearing, following the order of Silber J for inter an partes application, was fixed on 30th April, and for reasons of the court's business was not heard then. So the situation was all going wrong, whatever way one puts it, by then.  I do not much mind which way one looks at this, either one recognises that the authority is perfectly competent and will be looking at the self‑same arguments, because they are absolutely identical, they are full square.  There is no question here of the Secretary of State arguing from a different purview. The question is a very simple one of vires. So either at that stage one takes the view that the authority of course will be considering the point, and as long as the Secretary of State is confident of that, it is a matter for the court.
      Alternatively, one takes the view that this is properly a matter for the Secretary of State to argue, in which case the authority can either jointly instruct or simply have some note being taken. 
MR JUSTICE COLLINS: Yes, one small problem here, Mr Purchas, was the way in which the matter was progressed because, with the greatest possible respect to Mr Silber J, I would have thought that it would have been perhaps more sensible to order that the Secretary of State be joined at the earliest opportunity, because it was self‑evident that he was entitled to appear as an interested party.  Then it could have been up to the two defendants, or the interested party and the defendant, to sort out who should actually do the representation.
MR PURCHAS: I am not sure it was a problem at least from my client's point of view.  The moment it was raised our position was that we do not object. That is not quite the same as 'Come hither we do not object.'
MR JUSTICE COLLINS: No, I accept that.  You did not positively say we.
MR PURCHAS: (Inaudible) absolutely or whatever.
MR JUSTICE COLLINS: Although it clearly was.
MR PURCHAS: If the Secretary of State wished to be here in a matter in which it is interested, so be it.  But it is not different, is it, from any other judicial review process where, for instance, you may have developers, you may have the authority.
MR JUSTICE COLLINS: I am not sure I accept that entirely, Mr Purchas, because this was after all an  attack on a regulation and on a system which had been in operation and which everyone in the planning field believed was lawful.  That is obviously right, is it not, until someone, you or someone else, obviously thought 'Well, wait a minute, is this actually right?'
MR PURCHAS: I am not sure that is entirely right in the sense that the problem arose from 1991, but there is certainly no experience we have of any authority seeking actually to withdraw a plan before this occasion.
MR JUSTICE COLLINS: That may or may not be so, but‑‑‑‑
MR PURCHAS: Your Lordship said "everyone had assumed".
MR JUSTICE COLLINS: I think that is a fair comment, is it not?
MR PURCHAS: I am not sure it is.
MR JUSTICE COLLINS: Do you not?
MR PURCHAS: I hope your Lordship will bear with me because I do not think there is any grounds for it.
MR JUSTICE COLLINS: Maybe not.
MR PURCHAS: So I only say that because in this sense‑‑‑‑
MR JUSTICE COLLINS: Let me put it this way, the powers that be, in the sense of the Secretary of State, who is in charge of the whole system, clearly believed.
MR PURCHAS: My Lord, indeed, and I accepted that, your Lordship will recall. Maybe I have taken your Lordship's comment in the wrong way.  I was simply making the point  that, as far as I am aware, it has never been examined before.
MR JUSTICE COLLINS: That may be so.
MR PURCHAS: And from the point of view of those involved, it is when one's mind is focused on these things that you come to look‑‑‑‑
MR JUSTICE COLLINS: Of course, no error there.
MR PURCHAS: My Lord that is, in a sense, beside the point in this way.  When one looks, if I use the JPL example Mr Abrahams has passed in, where this advice from the House of Lords is coming, it followed of course Wychavon, Leggit LJ very properly sort of, as it were, brought back the statutory challenge practice of awarding a second set of costs to what had been the practice in what then was the Crown Office for years, there would normally be a single set of costs.  It is really at the top of page 301.
MR JUSTICE COLLINS: Yes. I have always understood that to be the principle.
MR PURCHAS: It was simply because the view was taken that there was the opportunity for the developer to appear, or the authority, the practice had arisen that the developer would get the second set.  It is my submission that either there has to be a separate interest, or some other basis upon which the Secretary  of State needs to be here which would justify overriding the normal principle that those who challenge Administrative Acts should of course be liable to pay a single set of costs but not double.
      My Lord, that is echoed in the Berkeley decision, your Lordship will be familiar I think with what Nourse LJ said there.
MR JUSTICE COLLINS: Possibly.
MR PURCHAS: Can I just show your Lordship?
MR JUSTICE COLLINS: It may be useful to remind me, I do not carry it all in my head.
MR PURCHAS: This was a case that went to the House of Lords but in the result of the House of Lords' decision this did not arise.  Can I go to page 4 of the transcript, the bottom paragraph:
 
"I turn to the costs of Fulham Football Club.  This question depends on an application of the principles of discretion authoritatively stated by the House of Lords in Bolton Metropolitan District Council v Secretary of State for the Environment...
  
Then submissions made by counsel for the Club is set out.  Your Lordship will see the various points set out, although it is fair to say in that case there were grounds that involved what actually had happened at the public inquiry.  If I can then pick it up halfway down that page: 
 
"Putting that third point on one side, I think that Mr Hicks' submission amounts to no more than that it would be and could be expected to be, as it no doubt was, very helpful for the Club to be represented before the judge.  They knew all about the inquiry, at which of course the Secretary of State had not been represented. While I am entirely clear that the Club was entitled to be represented before the judge (indeed, subject to the question of costs, their application for joinder was not resisted by Lady Berkeley), I am nevertheless unable to conclude that they have been able to demonstrate a separate issue, not covered by the Secretary of State, on which they were entitled to be heard, or an interest requiring representation. I can see that the question of the urban development project could be described as a separate issue not covered by the Secretary of State, but that does not appear to me to have been, in the context of the case as a whole, a sufficient ground for the Club to be represented as well as the Secretary of State.  As a matter of discretion, therefore, and we are now exercising the discretion afresh, I do not think it would be right, within the principles of the Bolton case, to make an order for costs in favour of the Club at first instance and, a fortiori, it would not be right to make such an order here." 
 
In that case there was actually a separate ground that the Club wanted to take: if the Secretary of State was not present, even so the court in a statutory challenge can still affirm the fundamental principle which should only be a single set of costs.
      My Lord, it is not for me to indicate how the single set should be divided.  It has certainly not been unusual to have a 50/50 order.  My Lord, unless I can assist your Lordship further?
MR JUSTICE COLLINS: No, thank you Mr Purchas. 
MR MORSHEAD: My Lord, if I may just reply very briefly in relation to the Berkeley case.  A couple of points to notice.  The first, in my submission, is that it was a case in which the Secretary of State, as I understand it, was hanging on to his decision.
MR JUSTICE COLLINS: Yes, I think that is right, is it not?
MR MORSHEAD: And it was not a case where the Club was seeking to do other than hang on to the same decision, the Secretary of State's decision, for their own perfectly proper reasons. This, of course, is a different case, in my submission.  Here is my Council hanging on to its decision.
MR JUSTICE COLLINS: Certainly.  That is obviously right.
MR MORSHEAD: I simply draw attention to Nourse LJ's reiteration of Bolton, the two limbs of the Bolton test which includes at page 5 guidance of an interest requiring separate representation.  If one focuses on what those interests are, in my submission, they are substantive legal interests.
MR JUSTICE COLLINS: But there was no need surely for separate representation because this was an issue which was the same for both of you.  There was one issue in this case and one only, which was whether there was a power in law to withdraw.  That is the only issue. 
MR MORSHEAD: In my submission that brings us within the second of the Bolton limbs, which focuses on the question of interests rather than whether there is an overlap of issues that each of the parties seeking to have their costs recovered wanted to be put before the tribunal. It is because there are two separate interests that two orders for costs should be made, if one is to follow that strict line of reasoning.
      My Lord, of course, my primary position is that in view of the way matters unfolded, and your Lordship has that point, whatever may otherwise be the case, this was a permission hearing that took off.
MR JUSTICE COLLINS: Yes, I know, although that could work against you if one follows the practice direction in the White Book, could it not? Because the practice direction tells me that in permission applications it is not normal for any costs to be awarded to any defendant.
MR MORSHEAD: My Lord, except where‑‑‑‑
MR JUSTICE COLLINS: I am not happy with that, I am bound to say.  It fails to have regard to the change in procedure which has come into force with the requirement for a defendant to file an acknowledgment of service, and also in a case like this where the judge has actually directed an oral hearing.
MR MORSHEAD: That would be my submission.  That guidance  is directed to a case where the permission hearing comes on in the 20‑minute list and the respondent has an opportunity to pitch up if he wants to.
MR JUSTICE COLLINS: I confess, this is perhaps fairly obviously, I am not entirely happy with the way that this was ordered to be dealt with.  But I do not think that it would be right for the claimants to have to pay extra for that.  On the other hand, one also has the other side of the coin: why should you have to pay for that?  It does make it more difficult.
MR MORSHEAD: Well, my Lord, your Lordship heard Mr Purchas' fall back position.  I do not urge it on your Lordship but it may be‑‑‑‑
MR JUSTICE COLLINS: The 50/50 you mean. Yes, Mr Abrahams?
MR ABRAHAMS: My Lord, just two submissions. In relation to the practice direction I would submit that where, as your Lordship has chosen‑‑‑‑
MR JUSTICE COLLINS: Do not worry I was flying a bit of a kite there, but I do not think in the circumstances of this case that does not really effect the issue. Mr Purchas has not suggested it does.
MR ABRAHAMS: Very briefly in relation to Bolton, my primary submission is that this is a case for two sets of costs. But if your Lordship is not with me on that, I  would submit this was a case where there was a single issue of two interests.  The question is whether the District Council's interest required separate representation. In my submission, this was not a case where separate representation was required.  I do not understand the District Council came to the matter with an angle that would not have been before your Lordship had they not been represented. It is on that ground that I would say that the Secretary of State is entitled to its costs.
MR JUSTICE COLLINS: Yes, thank you. What if I were to say, I just want your help on this, that I thought it appropriate that there should overall be essentially one set but I should reflect the obvious need for the Secretary of State to at least be involved in this, as I think was inevitable, and if I were to award one set of costs but to add the local authority's costs of dealing with the acknowledgement of service and preparing that?
MR ABRAHAMS: My Lord, in my submission, that would be a very satisfactory way of dealing with the matter.
MR JUSTICE COLLINS: Then split 50/50 for the balance, as it were?
MR ABRAHAMS: Would the position not be the that Secretary of State would obtain all their costs and then‑‑‑‑
 MR JUSTICE COLLINS: I did not have that in mind.
MR ABRAHAMS: Then I misunderstood your Lordship's suggestion.
MR JUSTICE COLLINS: You see, I also have to look at it from the point of view of the claimants and ask myself whether it is just that the claimants should overall pay substantially more than one set of costs.  Then one has the question of how one splits it.  I think there is a lot of force in the suggestion that ‑‑ then it is a matter for the defendant and the interested party between themselves to decide who is going to make the running.
MR PURCHAS: My Lord, can I just say one thing?
MR JUSTICE COLLINS: Yes, Mr Purchas.
MR PURCHAS: Just simply that in fact the 50/50 order for costs would, broadly speaking, bring out your Lordship's point because, of course, there was no acknowledgment of service from the Treasury Solicitor.
MR JUSTICE COLLINS: No, quite.  Well, would it?
MR PURCHAS: I leave it to your Lordship.
MR ABRAHAMS: The difficulty with a 50/50 order, from the Secretary of State's point of view, is that it simply does not reflect what I understand to be your view, that it was entirely appropriate for the Secretary of State to be joined as an interested party. 
MR JUSTICE COLLINS: It was but then, as I say, it would have been entirely appropriate for the parties to decide between themselves who would be instructed. For example, if it was decided by the Treasury to instruct leading counsel then it may be that junior counsel could have been instructed as the junior counsel who would otherwise have been instructed on behalf of the local planning authority (that is if Mr Morshead is on the right list).
MR ABRAHAMS: My submission is that the Secretary of State was preeminently interested in the single issue that was before your Lordship.  The appropriate way out, I would submit, is for the Secretary of State to have its costs but for the District Council to have such costs as your Lordship considers reasonable in relation to that period until we were joined as a party, in April of this year, and subject to any submissions that Mr Morshead may make, an allowance towards future costs, if Mr Morshead can persuade you that that is reasonable. That seems to me to reflect the fairness between the parties. It is not equivalent to the claimant having to shoulder two sets of the costs, and it is in line with what often happens in the case where a developer joins in and has an interest in, say, delay.  They put in evidence about delay and they are often awarded their  costs in relation to that specific issue.  So one party gets all its costs, the other party gets it costs in proportion to what the court considers a reasonable course.
MR JUSTICE COLLINS: Thank you.
      I have heard submissions on the question of costs.  Essentially, Mr Purchas submits that this is a case where he should not have to pay more than one set of costs.  The claim has, right from the outset, been made, and indeed before it was launched this was made clear, on the basis that the only attack was on the lawfulness of the power to withdraw. That inevitably meant that the claimants ought to have realised that the Secretary of State was bound to want to be involved, because clearly he had a very substantial interest in upholding the regulations which would otherwise have been inapplicable on this issue, and in maintaining the power which he had believed to exist since local plans were a feature of the planning system.
      This indeed is the first time that a suggestion has been made that the power did not exist. There was no attack in the claim, as it was presented upon the local authorities decision, that there was power to withdraw, although that had been threatened at the very earliest stage, but those threats were soon overtaken by the  single issue that came before me.
      In those circumstances, since there was just that one issue it would be considered normally wrong that there should be an order of costs that went beyond payment of one party. That, as I see it, is consistent with the guidance given by the House of Lords in the Bolton case [1996] JPL 300.  I have a report of that before me. At the top of page 301 there is a reference to observations of Leggit LJ in Wychavon District Council v Secretary of State for the Environment [1994], 69 P&CR 394, at 397:
 
"In my judgment, in circumstances such as these where the issues argued on behalf of two or more respondents are identical, the court should be disposed to make only one order for costs..." 
That, broadly speaking, was an approach which was approved by the House of Lords in that case.
      One problem that arises here is the form in which these proceedings came before me. The application was considered on paper by Silber J back in February.  He ordered that it be listed for an oral hearing and that the consideration as to whether the Secretary of State should be joined should be considered on that application. I gather that it was initially listed for 13th April but, for whatever reason, could not be heard on that day. I say "for whatever reason", it was not the  fault of the parties, it was because I gather there was in the end no court time available.
      When the matter came before me, it seemed to me, as I have indicated in the judgment, that the sensible course to adopt would be to grant leave and to make an order, the effect of which was that the substantive hearing should immediately take place.  The parties all consented to that approach. The problem created was, as Mr Morshead and Mr Abrahams have indicated, that there was no order that the Secretary of State could be joined until the matter came before me. On the other hand, it seems to me that it would be wrong to make the claimants suffer for that decision of the court, which resulted in the need at least for the Secretary of State and for the local authority to be represented. On the other hand, one asks oneself: 'Why should the defendants suffer?' One, therefore, has to try to do justice between the parties in deciding what is an appropriate order for costs in those circumstances.
      It is impossible when considering costs to deal in detail with every possible matter. It is only possible to adopt a relatively broad‑brush approach when one tries to see what is the fair order to make. In the circumstances of this case it seems to me that the claimants should not have to pay substantially more than  one set of costs.  On the other hand, they must have appreciated that of course they had to attack the decision of the local planning authority, but the form of the attack would inevitably attract the attention of and the desire to heard by the Secretary of State. That was an inevitable result of the attack which they saw fit to make.
      In those circumstances they ought to pay a little bit more than simply one set of costs to reflect the need for the Secretary of State to be involved, and the extra costs that that would inevitably result in before a decision was made between the defendants as to who should attend to make the running in the arguments.
      Doing the best I can, the appropriate order seems to me that the claimants should pay the costs of the local authority involved in dealing with the claim up until 12th April.  The local authority should have their costs up until that date. Thereafter, there should be an order that the claimants pay the costs claimed by the Secretary of State (that is the full costs claimed by the Secretary of State).  I propose to direct that 40 per cent of that sum be paid by the Secretary of State to the local authority.
      I appreciate that that is a slightly complicated order but I do not think it is actually all that  difficult to put into effect. It may be, Mr Purchas, that you are right that 50/50 would have reached the same, but I do not know what the figures are going to be.
MR PURCHAS: We have your Lordship's order.  We are very much obliged.
MR JUSTICE COLLINS: I hope everybody understands it?
MR PURCHAS: I have taken a note.  My Lord, can I trouble your Lordship, I have an application for permission to appeal, if that is convenient?
      My Lord, can I start first of all with just this simple proposition: my Lord, real prospect of success. When the new rules were introduced by Brooke LJ reference was made to costs first, and your Lordship will know the judgment of the Master of the Rolls indicating that real prospect of success ‑‑ albeit then he was looking at a negative, meant not fanciful, not unrealistic.  So that is the test I would invite your Lordship‑‑‑‑
MR JUSTICE COLLINS: Yes, it is a test I am used to applying in another jurisdiction.
MR PURCHAS: My Lord, I mentioned it to make sure I was on common ground with your Lordship on that, if I may say so.  My Lord, I put it in two ways: first, that there is a real prospect of success; and second, that  there are compelling reasons here why the appeal should be heard. So can I deal with those very briefly, if I may?
      There are three essential grounds on which I would, with deference, wish to explore your Lordship's judgment.
MR JUSTICE COLLINS: You are very tactful.
MR PURCHAS: It is always difficult, is it not, my Lord?
MR JUSTICE COLLINS: Do not worry, I am well aware, Mr Purchas, that I may be wrong.  I do not think I am, but I of course recognise‑‑‑‑
MR PURCHAS: My Lord, the first is really this.  It is your Lordship's approach which we would say was wrong in this sense: your Lordship should have applied the approach in Westminster Bank ‑ whether there is an irresistible inference.  Now if that is to be implied, for example at paragraph 23 where your Lordship deals with obscurities, then my Lord we have a number of points to make on that which we say that your Lordship's view on obscurities is not supportable. Can I just identify six of them.  First, the failure to have regard to the implications of the remainder of the plan; this is but one policy in a plan governing the whole of the local plan area.
MR JUSTICE COLLINS: That, with respect, is an argument  which goes not to whether there is a power to withdraw, but whether there ought to have been withdrawal.  That is, with the greatest possible respect, totally irrelevant to this issue.
MR PURCHAS: My Lord, it is something I would want to explore elsewhere.
MR JUSTICE COLLINS: In my view that is not a good point.
MR PURCHAS: My Lord, so be it.  I do not think I will elaborate the arguments, otherwise we will be here a long time.
MR JUSTICE COLLINS: Obviously.
MR PURCHAS: I certainly do not intend to do that. Secondly, your Lordship has failed to have regard to the framework of the structure plan.  In other words, one has here a plan which is making detail application of something that has been approved‑‑‑‑
MR JUSTICE COLLINS: Sorry, you said structure plan, did you mean local plan?
MR PURCHAS: I meant structure plan.
MR JUSTICE COLLINS: You did mean structure plan?
MR PURCHAS: That is exactly the point your Lordship has not addressed.  One is dealing with a limited tool to effect an important public task.
      The third point your Lordship has not had regard to is the fact that one would anticipate where there is  statutory duty imposed, as there is in the Act and the regulations, to proceed through a series of steps that are important from the public interest to find an express duty to override that, if it is proposed to be provided. My Lord, that is not a point your Lordship has addressed.
MR JUSTICE COLLINS: Implied by implications, perhaps.
MR PURCHAS: My Lord, as I say, I am not particularly arguing these points and, your Lordship, plainly I am not involved in a reasons challenge.  Fourthly, my Lord, your Lordship has not dealt with the point about where the power actually stops.  The particular point is that with structure plans and UDPs it expressly applies after call‑in.  Now your Lordship has suggested in paragraph 10 of your Lordship's judgment that the process comes to a halt when it takes over.  If your Lordship is intending to imply by that that the local authority is without power at that stage, I would respectfully be submitting your Lordship is wrong.  There is a limit on the control, and it is deliberately there.  Your Lordship has not dealt with the question whether this implied power applies before or after that call‑in. That is another matter, in my submission, which lends support to not making, as it were, the irresistible inference.
      Your Lordship then has set out section 50 in  paragraph 12 but without coming back to it.  Of course in section 50 one has in the same section the position of the structure plan and the local plan dealt with cheek by jowl.  That is another matter, in my submission, where it really is impossible here to say there is the irresistible inference which should be drawn. My Lord, if I have not mentioned I should have mentioned of course the Secretary of State's call‑in. My Lord, that is the first area that we wish to explore. The second is this.
      As we read your Lordship's judgment, particularly in paragraphs 22 and 25, we understand your Lordship to have placed quite considerable weight on the identity between abandonment and withdrawal.  My Lord, we say, first of all, that your Lordship is simply wrong as a matter of language and that if one was going to put a special interpretation on withdrawal or abandonment then there would have to be grounds within the statute.  Your Lordship has not dealt with it in that way. What your Lordship has said, if we look at paragraph 25, is that the effect of an abandonment and of withdrawal is the same.
MR JUSTICE COLLINS: Yes.
MR PURCHAS: In argument I did not produce the dictionary definition. 
MR JUSTICE COLLINS: Well, I looked at it.
MR PURCHAS: My Lord, I left it to your Lordship and, in my submission, if one looks at the dictionary definition there is no way of reconciling your Lordship's judgment.
MR JUSTICE COLLINS: It depends which dictionary you look at, Mr Purchas.
MR PURCHAS: My Lord, I am not here to argue the point. If your Lordship puts it that way, I pass your Lordship the Concise Oxford English ‑‑ Shorter Oxford English Dictionary.
MR JUSTICE COLLINS: I looked at the Shorter too, I also looked at my namesake.
MR PURCHAS: My Lord, I am only here to indicate what I seek to challenge is not fanciful.
MR JUSTICE COLLINS: No, I can see there may be an argument, it depends what you abandon, but yes.
MR PURCHAS: That I will come to in just a moment, if I may.  In my submission, the concept here of abandonment  ‑ desert; leave behind; leave whatever ‑ and contrasts that with withdrawal ‑ take back; retract, and so on  ‑‑‑‑
MR JUSTICE COLLINS: Yes you "give up" if you abandon, you "take it back" if you withdraw.  You say it is still left lying around‑‑
MR PURCHAS: My Lord, the importance of that‑‑‑‑
 MR JUSTICE COLLINS: ‑‑and can be picked up by somebody else.
MR PURCHAS: The importance of that, which your Lordship has not dealt with here, is that if there is withdrawal then, on the face of it, there is nothing left to deal with.  So there is no possibility of call‑in by the Secretary of State.
MR JUSTICE COLLINS: I follow the argument, Mr Purchas.
MR PURCHAS: That is not a matter your Lordship has addressed. Your Lordship seems to have placed weight on the fact of what your Lordship describes as the proposals, which is the second point.  That is, in our submission, a misunderstanding of the position.  As we submitted to your Lordship in fact the proposals, in other words the plan, has an important, independent existence both through the process required by statute being examined through the local plan in the light of objection, but of course it can be approved by the Secretary of State and it is still a local plan.
      Of course one does not know on your Lordship's judgment whether, even at that last stage after call‑in, this implied power is relevant or not, because that is something which is not dealt with.
      Your Lordship helpfully indicated in argument that if there was withdrawal the plan could still be  called‑in, that was during argument.
MR JUSTICE COLLINS: No, I did not indicate, I was raising the possibility.
MR PURCHAS: Well, then, your Lordship has helpfully indicated that now.  But it is not a matter your Lordship addresses in your Lordship's judgment.
MR JUSTICE COLLINS: No, it did not seem to me to be a good point when I thought about it.
MR PURCHAS: Your Lordship has also failed to deal at all with the very clear distinction made in the regulations that preceded the 1990 and 1991 Acts consistently through 1971, 1972, 1974, and 1982.  If one takes 1982 by way of example the precise language used in regulation 19 of withdrawal of a plan, the structure plan, in regulation 26 withdrawal of copies of the plan, intending it to be withdrawal in that sense, and in regulation 33 abandonment and withdrawal within the same regulation.  Your Lordship has not touched at all upon that precise use of language which was there before‑‑‑‑
MR JUSTICE COLLINS: I have not spelt it out in the sense that I have not referred to every regulation which uses the language, but I should have thought it was very clear what I was saying.
MR PURCHAS: My Lord, I am not here to criticise your Lordship's judgment. 
MR JUSTICE COLLINS: No, you are but‑‑‑‑
MR PURCHAS: My Lord, I started off by indicating‑‑‑‑
MR JUSTICE COLLINS: Which is fair enough.
MR PURCHAS: The role I am in, my Lord, is simply to indicate to your Lordship the points I wish to challenge are not fanciful.
MR JUSTICE COLLINS: No, fine.
MR PURCHAS: The last point I would wish to deal with, if your Lordship will bear with me, is simply this. Your Lordship has taken the approach of looking back at the history of these legislative provisions.  In doing so, your Lordship rightly has directed that there would have to be ambiguity.  Your Lordship in finding ambiguity appears at paragraph 18 to have fastened upon three points.  First, the deeming provision in the 1985 Local Government Act; secondly, note 3 to paragraph 3 in schedule 13; and thirdly, the apparent inconsistency between UDPs and local plans.  In my respectful submission, there is no grounds for concluding ambiguity on those three reasons I have just indicated to your Lordship.  First, that the local Government Act 1985 is simply using a deeming provision.  It is a separate Act.
MR JUSTICE COLLINS: Mr Purchas, forgive me, I can understand that there are substantial arguments which could be raised, but I am not sure, is it necessary for  you to spell out what they are?
MR PURCHAS: If your Lordship is with me that there is, as it were, a real prospect of success I would not‑‑‑‑
MR JUSTICE COLLINS: I am not saying that there is necessarily that.  What I am saying is that I understand that there are arguments, mainly which you put before me.
MR PURCHAS: My Lord, that brings me back to where I started.  The test here is that the grounds are not unrealistic and not fanciful.  There is a scope for a different view.
MR JUSTICE COLLINS: At the moment I recognise that this was not entirely straightforward, as I think I indicated when I first read the papers.  I thought the answer was fairly clear and was against you.  But you persuaded me that there was a lot to think about.  In the end, you did not persuade me that it came down in your favour. But I do not pretend that there is not a substantial argument.
MR PURCHAS: If that is right, my Lord, I mean one of the dangers is that if at this stage permission is not granted we have to take court time and expense‑‑‑‑
MR JUSTICE COLLINS: Mr Purchas, at the moment I am leaning in your favour.
MR PURCHAS: My Lord, I am quite confident that an  application for permission is unlikely to be resisted by the Secretary of State‑‑‑‑
MR JUSTICE COLLINS: I do not know.
MR PURCHAS: It is a matter of great public importance.
MR JUSTICE COLLINS: Yes, I recognise the importance as well.
MR PURCHAS: If I may say this, as I pointed out‑‑‑‑
MR JUSTICE COLLINS: Perhaps the message should go to the draftsman that in the next amendment they might think of actually making it clear.
MR PURCHAS: Yes. My Lord, I will not finish the grounds that I would wish to take but I better have that on the transcript.  But, my Lord, I do say this‑‑‑‑
MR JUSTICE COLLINS: You will not need them on the transcript because you will put them in your notice of appeal, will you not?
MR PURCHAS: But on occasion it is important to have them on the transcript.
MR JUSTICE COLLINS: All right.
MR PURCHAS: Can I just say this, it is important also for those many other objectors to this plan to suddenly have the plan removed, nothing to do with our proposal.
MR JUSTICE COLLINS: Yes. But I do not suppose they are particularly worried if they were objecting.  But still, that is by the way. 
MR PURCHAS: My Lord, I say no more than that. My Lord, I will not elaborate further, unless there is anything else.
MR JUSTICE COLLINS: What is the attitude, Mr Morshead?
MR MORSHEAD: My Lord, it is certainly not a case where it would be appropriate for me to indicate consent to the grant of permission.  I resist the application. My Lord, equally, in my submission, it would be inappropriate for me to take on each of the arguments foreshadowed by my learned friend in an attempt to knock them down.
      Your Lordship accepted the main submission of both the Secretary of State and my client, which was that the straightforward obvious one, as it were, that it must follow from the fact there is a discretion not to (inaudible) that is a very forceful point.  In my respectful submission the way that your Lordship has dealt with the various obscurities tending against that implication is more than sufficient to have dealt with them, and clarified what might otherwise have been a murky area.
      In my submission, the fact that there are a great number of obscurities does not in the end amount to a forceful argument against the existence of the (inaudible) power.  It is in a way not for me to do more  than to indicate that those are among the important matters for your Lordship to have in mind when considering whether this it an appropriate case for permission.  I leave it to your Lordship with that in mind.
MR ABRAHAMS: My Lord, my instructions are to remain neutral on the question of permission to appeal.
MR JUSTICE COLLINS: At least you have not got an opposition. Mr Purchas, without giving any encouragement. I do take the view that this was not entirely straightforward.  It is obviously an important point for planning law.  I am prepared to grant leave to appeal to avoid the need for you to go to the Court of Appeal.
MR PURCHAS: My Lord, I am much obliged.
MR ABRAHAMS: My Lord, on the question of costs, I assume that costs are for detailed assessment?
MR JUSTICE COLLINS: I am sorry, I had forgotten that you had mentioned the possibility of some reassessment.  Do you want to pursue that?
MR ABRAHAMS: I do not pursue that.  The costs should be detailed assessed.
MR JUSTICE COLLINS: I would have thought that that was appropriate.
MR PURCHAS: My Lord, yes.  We got the schedule at seven  minutes past four last night. We do not have instructions on it.
MR JUSTICE COLLINS: I mean it is obviously‑‑‑‑‑
MR PURCHAS: I think your Lordship's order will involve a little bit of scrutiny anyway.
MR JUSTICE COLLINS: Possibly, yes.  It might be that both of them will try to get as much as they can out of it.
MR PURCHAS: I have no doubt.
MR JUSTICE COLLINS: All right. Thank you very much.
                     ‑‑‑‑‑‑‑‑‑