QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF KEITH HAMMERTON||Claimant|
|- and -|
|LONDON UNDERGROUND LIMITED ||Defendant|
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)
Michael Barnes QC & Mr J. Greenhill (instructed by Frances Low Solicitor LUL) for the Defendant
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice OUSELEY :
The Order, permission and consents
"Power to construct works
4. - (1) The Company may construct and maintain the scheduled works.
(2) Subject to article 5 below, the scheduled works shall be constructed in the lines or situations shown on the deposited plans and in accordance with the levels shown on the deposited sections."
"4. (4) Subject to paragraph (5) below, the Company may carry out and maintain such other works (of whatever nature) as may be necessary or expedient for the purposes of, in connection with or in consequence of, the construction of the scheduled works."
"Work No. 2 A railway (1050 metres in length) mainly on a new viaduct commencing by a junction with the termination of Work No. 1 (railway) passing in a south easterly direction on the new viaduct passing over Holywell Lane and Shoreditch High Street by means of new bridges and across the site of the disused Bishopsgate Goods Yard passing over Wheler Street and Brick Lane and then passing over the Great Eastern Railway by means of new bridges and passing over Work No. 7 (new street) and Work No. 3 (railway) of the Crossrail project (if constructed) and joining the course of the East London Line between Shoreditch station and Whitechapel station and terminating at a point 20 metres north west of the junction of Selby Street with Vallance Road."
"that planning permission be deemed to be granted for the development for which provision is included in the Order subject, in relation to Work Nos. 1 to 2 and 4 to 7 as described in Schedule 1 to the Order, to the conditions set out in Part I of the Annex to this direction and, in relation to Work No. 3 as so described, to the conditions set out in Part II of the said Annex."
"(1) The development shall be begun before the expiration of five years from the date the Order comes into force (that is, no later than 10 February 2002)."
Condition 12 reads:
"(12) No work shall commence on site until full particulars of the location and method of measures to be taken to minimise the effect of vibration from the operation of the Line on adjacent listed buildings have been submitted to and approved by the relevant local planning authority."
Condition 21 reads:
"(21) The development shall not commence until the exchange land described in article 30 of the Order has been made suitable for use as open space by:
(i) the removal of redundant viaduct arches and other buildings;
(ii) contouring the land to appropriate levels;
(iii) providing a suitable depth of soil to support vegetation; and
(iv) providing landscaping in consultation with the relevant local planning authority."
Condition 23 reads:
"(23) No development shall commence on the land bounded by Bethnal Green Road, Wheler Street, Shoreditch High Street and the proposed Bishopsgate station or on land in Allen Gardens until a landscaping scheme for those sites has been submitted to and approved by the relevant local planning authority."
Consents C and D so far as material are as follows:
"(C&D) listed building consent for the partial demolition of the former Bishopsgate Goods Yard, Shoreditch High Street, E1 and the construction of a length of boundary wall, in accordance with your application Nos. LRP270/E5990/052 & LRP270/U5360/014 to the Councils of the London Boroughs of Hackney and Tower Hamlets dated 3 December 1993 and submitted drawings and revised drawing 116B subject to the following conditions:-
a. No demolition works shall commence until full particulars, including detailed drawings, of the measures be taken to safeguard and where necessary consolidate the structural integrity of the gates and associated structures and the former Bishopsgate Goods Yard, both during the works of demolition of the adjacent structure and subsequently, have been submitted to and agreed by the local planning authority and the appropriate measures have been implemented. The gate mechanisms within the forecourt shall be retained in situ.c. No demolition shall commence until details of the precise location, height and materials of the screen wall shown on drawing E/HR 0721/P/24/A/0116/B, and of the ground surface treatment of the area to the north of this wall and of the area to the west of the retained structure, have been submitted to and approved by the local planning authority. The screen wall shall be constructed before the Line is brought into use."
The listed building at the time of the Inquiries
"Forecourt Wall and Gates to Old Bishopsgate Goods Station".
The description underneath the function does not define the listed building though it helps to identify it. The listing is not limited to the features referred to in the description, which however usually identifies those features of special interest which led to the listing; here it describes nothing more extensive than the gates and pillars themselves, and "a red brick wall".
"5.23 In its present condition the former goods station detracts from the character and appearance of the area and represents a far from optimum use of a valuable inner city site.
5.24 From the extract from the statutory list it is clear that only the forecourt wall and the gates to the former goods yard are listed … .
5.26 The works proposed would retain the features of interest that are specifically mentioned in the list description and would facilitate a scheme that would bring substantial benefits for the community and would contribute both to economic regeneration and the environmental enhancement of the area. As such I consider that the partial demolition would accord with the statutory provisions … ."
"6. English Heritage were still of the opinion that the specific interest of the structure relates to the entrance gates and ornamental stone work only. They consider that part of the Goods yard which lies within the London Borough of Tower Hamlets is not listed and is not of special architectural or historic interest."
"8. On balance it appears to him that the curtilage of the listed structure includes the ramp and wall adjacent to Bethnal Green Road, which extends continuously as far as Wheeler Street as shown in stippled tone on the Appendices to the application. He has therefore proceeded to determine all the listed building consent applications submitted."
"(a) any object or structure fixed to the building;
(b) any object or structure within the curtilage of a building which although not fixed to the building , forms part of the land…"
"7.3.5. All that remained of the goods yard was the ground floor structure, the first and second floors having been demolished following a major fire in 1964. LUL had not glossed over the history of the structure, and very extensive records were available. The goods yard, which LUL proposed partly to demolish, largely dated from the 1880s, and did not comprise the earlier structure which formed the passenger station of the 1840s. So far as is known, that no longer exists."
"9.24.1 Finally, I come to the two applications for Listed Building consent in respect of the proposed demolition of the northern part of the former Bishopsgate goods yard. I accept the LUL argument that it is necessary to demolish part of this structure, as I doubt if it would be practical to build a higher level railway line and a station on top of it. Even if this were structurally possible, I think the resulting hybrid appearance would do little for the enhancement of the surrounding area. I also prefer the arguments of LUL as to the origins of the present buildings from the 1880s, to those of Mr Prokopp of the 1840s."
The claimant's case
First, had any "material operations" been undertaken?
"56. – (1) Subject to the following provisions of this section, for the purposes of this Act development of land shall be taken to be initiated –
(a) if the development consists of the carrying out of operations, at the time when those operations are begun; … .
(2) For the purposes of the provisions of this Part mentioned in subsection (3) development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out.
(3) The provisions referred to in subsection (2) are sections … 91 … .
(4) In subsection (2) "material operation" means –
(a) any work of construction in the course of the erection of a building;[(aa) any work of demolition of a building;](b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;(c ) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);(d) any operation in the course of laying out or constructing a road or part of a road; … .
Second, were any of the conditions not complied with when those works were carried out?
"The condition can not be regarded as discharged as there has been no formal application to the Council. However given the circumstances an application under Section 73 would be the way forward."
"(4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun."
Third : what is the significance of the commencement of development in breach of planning control?
"Although the development has to be commenced by this date, the conditions do not expressly require the approval to be obtained by this date. There is, however, a clear implication that the developer will have applied for permission before that date. As long as the developer has applied for the approval, I would not draw the implication that the approval must be obtained by this date. It must have been reasonably obvious to Parliament that there would be many situations where although a developer had made a timeous decision to apply for approval, that approval, through no fault of the developer, could not be obtained until after the expiration of the time limits for implementing the permission. Where this happens and the developer had already implemented the permission by commencing operations pending the outcome of approval, it could be grossly unfair to the developer to regard him as being time barred. Indeed, the operations which took place to comply with the time-limit may be a matter which would not be affected by the terms of the approval, although they would still contravene a blanket prohibition the commencement of operations. Alternatively, they may be of no significance from a planning point of view so no reasonable planning authority would contemplate enforcement action. I cannot accept that it was intended that in these circumstances a planning permission should be of no effect … ."
At p84G: " … I take the view that it can accord with the intent of the legislation if the approval is obtained after the expiration of the time-limits as long as the application has been made before the specified time-limits and either the operations which have taken place are immune from enforcement or the approval is obtained prior to enforcement action. If the operations can be and are the subject of enforcement action the position is different, since in the context of the enforcement proceedings the question of whether an approval, and if so what approval, should be given can be decided by the Secretary of State, the Secretary of State using if necessary his powers to grant a fresh planning permission."
At p85B: "It is in these circumstances that I consider that the third candidate provides the correct solution to the question and that whether the planning permission has been implemented has to be tested by examining the situation in an enforcement context by considering whether enforcement action is possible and if it is leaving the outcome to be determined in the enforcement proceedings. This is a sensible and practical solution to the possible problems in obtaining approval. Obviously, if the planning authority or the Secretary of State does not regard it as desirable, where a time-limit has expired, to give approval to reserved matters they are not under a duty to give approval. They can take the stand (as long as they act reasonably) that the developer has lost his chance. If, however, they give approval, no purpose would be served in requiring a fresh application for planning permission."
At p86A: "If it is not already clear, I make it absolutely clear now, that if a developer does not comply with a condition he can have enforcement action or any other available action taken against him. The only consequence of the approach indicated in this judgment is that when the merits of the enforcement proceedings come to be considered, it is necessary to take into account the situation as it exists at that time and, in particular, whether or not at that time any approval required by condition has been obtained.
The result is therefore that in this case, the operations having been commenced and the application for approval having been made before the expiry of the time-limits, the relevant operations no longer being enforceable against the approval having been obtained prior to the enforcement action, the developers' appeal to the Secretary of State should have been allowed."
"But it seems to me that there must be some flexibility in the manner in which the conditions precedent to an extensive development can be approved. There could be no conceivable prejudice to the purpose of the conditions in what was done. The construction of the spur road did not and could not in any way affect the need for the compliance with the conditions for any further development. This was not a case of waiver but of the Council exercising a proper and sensible discretion in the manner in which it dealt with he conditions. I am satisfied that the works were lawful, as all concerned intended and believed, and that the principle in Whitley is not applicable."
"Thus Condition 11 was in substance complied with. The report had been approved. All that is missing was the formality of a written application and written notice of approval. Furthermore the actual work was in conformity with the plans that had been expressly approved by the council in June 1991, and it was carried out with the full knowledge and co-operation of the planning authority and the highway authority.
In these circumstances, in my view, looking at the matter in 1997, it was not only reasonable for the authority to hold permission had been implemented, it would have been wholly unreasonable for them to have decided otherwise."
"… If it had been necessary to do so, I would have expressed my agreement in principle with the view of Woolf J. (as he then was) in Etheridge v. Secretary of State for the Environment (1984) 48 P. & C.R. 35 that a development carried out without permission or commenced in contravention of conditions of a permission would not be development to which the permission related because it was development carried out in breach of planning control and so not permitted. However the importance and nature of the condition and the extent of and the reasons for breach may in some circumstances be relevant considerations and I would prefer to reserve an opinon on the question for a case in which it is necessary to decide it."
"We are not concerned directly with the situation, which undoubtedly can arise, when the planning permission is subject to a condition that the building must be built or the operations carried out in a particular way and yet what was done was at variance with what was foreseen. Those problems I would leave to be considered when they need to be considered."
"It can be seen that both those cases were narrow exceptions to the general principle, one arising where the planning authority had agreed to work starting without compliance and the other where the condition had been met in substance, although not in form. Both decisions accord with normal legal principles."
"The present case cannot, in my view, be brought within either of those two exceptions. It is argued that in standing by and doing nothing when the roadworks started to its knowledge, the defendant in this case was coming close to the position of the authority in Agecrest. I do not accept that. By itself mere failure to act, for example, by failing to serve an enforcement notice, is not to be seen as agreeing to work starting. Nothing in the evidence before me establishes any such agreement by the defendant. Nor patently does the decision in the Flintshire case have any application to the present facts."
"Thus, there is a considerable degree of "flexibility" and "common sense" built into the statutory code. Of particular importance, the procedures in the statutory code ensure that the interests of all parties, neighbours, other developers and landowners, statutory bodes (such as highway and water authorities) and the Secretary of State, are all taken into account at the appropriate stage. It is important at all times to remember the public nature of town and country planning. It is not a matter for private agreement between developers and Local Planning Authorities."
"27. Be that as it may, the important question, as Aldous LJ recognised, is whether the resolution counted as a determination under section 64. Such a determination is a juridical act, giving rise to legal consequences by virtue of the provision of the statue. The nature of the required act must therefore be ascertained from the terms of the statute, including any requirements prescribed by subordinate legislation such as the General Development Order. Whatever might be the meaning of the resolution if it was not a determination within the meaning of the Act, it did not have the statutory consequences. If I may quote what I said in the Mannai case  AC at p776B-
"If the clause had said that the notice had to be on blue paper, it would have been no good serving a notice on pink paper, however clear it might have been that the tenant wanted to terminate the lease."
28. A reading of the legislation discloses the following features of a determination. First, it is made in response to an application which provides the planning authority with details of the proposed use and existing use of the land. Secondly, it is entered in the planning register to give the public the opportunity to make representations to the planning authority or the Secretary of State. Thirdly, it requires the district authority to be given the opportunity to make representations. Fourthly, it requires that the Secretary of State have the opportunity to call in the application for his own determination. Fifthly, the determination must be communicated to the applicant in writing and notified to the district authority.
29. It is, I think, clear from this brief summary that a determination is not simply a matter between the applicant and the planning authority in which they are free to agree on whatever procedure they please. It is also a matter which concerns the general public interest and which requires other planning authorities, the Secretary of State on behalf of the national interest and the public itself to be able to participate."
"In the light of these dicta the court should, in my judgment, be very slow to permit extra statutory "flexibility" or to countenance non-statutory "agreements" between developers and Local Planning Authorities that conditions need not be observed. Agecrest should now be confined to its own particular facts, an express agreement in writing reached in the context of a less comprehensive planning code. The decision is also explicable upon the basis that, on the facts of that case, a legitimate expectation had been created as a result of the Deputy County Planning Officer's agreement at the meeting on 10th March 1967 and the Clerk of the Council's letter dated 5th April 1967, from which it would have been an abuse of power for the Local Planning Authority to have resiled, bearing in mind the imminent deadline of 6th April 1967. I will deal with the question of legitimate expectation under ground (3) below, but unless it can be established that an Agrecrest "agreement" has given rise to a legitimate expectation from which it would be an abuse of power for the Local Planning Authority to resile, I do not see how such an agreement can now be allowed to bypass the statutory code.
Mr Elvin submitted that implementation of planning permissions was not dealt with by the statutory code. The code was silent, so judges had been obliged to supplement it, as in Whitley. Where one was dealing with judge-made rules rather then the provisions of the code itself, a measure of flexibility and common sense was both necessary and desirable But the code does address this issue. Section 92(5) makes specific provision for phasing conditions, and section 191A(1)(b) is clear:
"Failing to comply with any condition subject to which planning permission has been granted, constitutes a breach of planning control."
At p100B, Dyson J said:
"… the effect of the legitimate expectation argument, if accepted, is that Powergen will have achieved a variation of condition 2 without going through the relevant statutory procedures. The starting point is that the law of town and country planning is public law. It is an imposition in the public interest of restrictions on private rights of ownership of land. The courts should not introduce principles or rules derived from private law unless expressly authorised by Parliament to do so, or if it is necessary to give effect to the purposes of the legislation."He continued at p101G-H :
"… section 73 is the provision that Parliament has enacted to deal with situations where a developer wishes to develop land without compliance with conditions previously attached to a planning permission. What is required in such circumstances is that the developer apply for planning permission. I do not accept that the provisions of section 73 can be sidestepped by persuading a local planning authority, still let an unauthorised officer, to vary or waive a condition under the guise of the exercise of a general management discretion in the implementation of planning permissions."Schiemann LJ said briefly at para 23:
"The judge held that the officers, whose words were relied upon as preventing the authority from now taking any point in relation to time, had neither actual or ostensible authority to make representations to that effect and rejected an argument to the effect that the doctrine of legitimate expectation entitled Powergen to such rights. He went on to hold that the words relied on could not give rise to the expectation asserted and that in any event they had not been relied on. I agree with the reasoning and conclusion of Dyson J that on the facts of this case it is not possible to show that the doctrine of legitimate expectation operates so as to entitle Powergen to proceed to build the Food Store."
"Secondly, and more importantly, I share the concern expressed by Dyson J in Powergen about the sidestepping of the statutory provisions of section 73, with their attendant procedures to protect the interests of third parties and the general public interest. The court should in my view be very slow to find that the principle of legitimate expectation operates so as to keep alive a planning permission that has on the face of it expired because there was no lawful commencement of the development within the time laid down; or, to pursue the matter to the conclusion sought by the claimant in this case, to find that it operates so as to require the grant of a certificate of lawful development in circumstances where on a proper analysis the development would be unlawful. There is nothing in the circumstances of the present case capable of achieving that result. It cannot possibly be said to have been an abuse of power to hold that the planning permission was not lawfully implemented."
"I do not think that Agecrest should now be regarded as a discrete exception to the general principle that operations carried out in breach of a condition cannot be relied on as material operations capable of commencing a development. Any exceptions to that principle need to be established in accordance with the principles discussed in Powergen and Reprotech. I do not know whether Agecrest was cited to the court in Powergen, but there is an implied reference to it, or to its reasoning, in the passage of Dyson J's judgment where he states that section 73 cannot be sidestepped by persuading an authority to vary or waive a condition "under the guise of the exercise of a general management discretion"; and, as I have already said, that passage fell within the scope of the Court of Appeal's approval of Dyson J's judgment. In any event I have difficulty in seeing how the decision in Agecrest fits into the present statutory framework and I would accept Mr Brown's submission that it was narrow in scope and is distinguishable. I do not place any great weight on the reference to it in Leisure Great Britain, where the point does not appear to have been the subject of substantial argument. Accordingly, the inspector did not fall into error by failing to deal in terms with Agecrest and the decision in that case does not undermine his reasoning or conclusion."
Would enforcement action be unlawful here?
Listed Building Consents and the Demolition of the Goods Yard
"2.- (1) subject to sub-paragraph (2), the demolition of the following descriptions of building shall not be taken, for the purposes of the Town and Country Planning Act 1990, to involve development of land:
(a) any building which is a listed building as defined in section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990;(d) subject to sub-paragraph (3), any building other than a dwelling-house or a building adjoining a dwellinghouse;"
"3. In this direction –
"building" does not include part of a building, …. .".
"The surviving 260 metres of a viaduct built by the Eastern Counties Railway Company between 1839 and 1842 to a plan by John Braithwaite, the company architect. It was designed to carry trains into the terminus of Shoreditch Station (later called Bishopsgate Station, then superseded in 1875 by Liverpool Street Station). It was originally about 2 kilometres long and carried two lines of track on a series of broad elliptical vaults.
The surviving section contains 21 piers supporting 20 arches. It is built of stock brick from various sources, and the piers are decorated by stone impost bands and rendered plinths. The Gothic style of cross vaulting was an unusual choice, set against the Italianate style of the station building. The structure of the Viaduct is reminiscent of earlier canal architecture than it is of the more standardised railway architecture that was to follow. The piers are pierced by one, two or three pointed cross vaults which allowed pedestrian traffic to travel below the viaduct. This was intended to minimise the disruption to movement in the area and thus, lessen the impact of the railway line on local life. Shoreditch Station was remodelled between 1877 and 1881, and that new development encased the Viaduct between extensive vaults to north and south, the whole supporting a vast goodsyard on the upper deck. The surviving section of the Viaduct was reduced by approximately 2 metres before the bonding of the new vaults to its current width of 14 metres, although the foundations of the original piers survive to their full width.
The Braithwaite Viaduct is a very early and rare example of a railway viaduct associated with a first generation London Terminus. Its unusual and individual design and use of materials set it apart both structurally and visually from the more standards forms of railway architecture. It is associated with an important phase of railway development and bridges the period between distinct canal and later distinct railway engineering forms.
The Goodsyard was constructed some forty years after the Viaduct, a time from which many more buildings survive and, as PPG15 tells us, greater selection is needed, and that only buildings of definite quality and character are listed. The surviving structures were part of a much larger scheme, the bulk of which was destroyed by fire in 1964. Because of these losses, it too suffers from a lack of context. Ministers have concluded that these factors are so serious that they compromise the quality and character – and, therefore, any special interest – the buildings might have had; the Goodsyard will not be added to the list."
"This proposal is to list the entire structure in grade II. This is wholly appropriate for the bulk of the surviving fabric which dates form 1877-81. The earlier work is of exceptional interest and rarity and requires a greater degree of management control. Consequently, we are also recommending that the 1839-42 Braithwaite Viaduct be scheduled."
"The viaduct is abutted on each side by the widening carried out as part of the 1877-81 creation of the goods depot above: the outer spandrels of the arches are thus concealed by later brickwork, but the viaduct survives in its entirety within these additions. In 1877-81 this site was converted from a main line terminus to a goods – only terminus, and a very complex, three-tier system of upper loading platforms, carriage hoists, hydraulic gear, storage areas, carriageways with turntables, powered by an extensive system of steam boilers and accumulators. This huge complex, built at a cost of £500,000, lay beneath a large warehouse and goods station above: these were destroyed by fire in 1964, leaving the lower layers intact. We are thus dealing with two principal components: an exceptionally important early railway structure (the 1839-42 Braithwaite Viaduct) and a partial survival of a once-flourishing goods depot.
All pre-1840 survivals of railway structures are of outstanding importance and the presumption is very much in favour of listing them. Britain's exceptional legacy of such structures is of international importance. There is more to Bishopsgate's interest than the first generation survivals alone, however.
The complex is vast and an engineering enterprise of considerable magnitude. The site shows the development of the railway age, from the first phase, to the heroic High Victorian phase of colossal engineering works.
Decision Precis: In spite of the loss of the goods station above, this complex of viaducts and warehousing is of special interest for two principal reasons. The 1839-42 Braithwaite Viaduct is an exceptionally early railway structure. Originally free-standing it was subsumed in 1877-81 to form part of the sub-structure to a goods depot, comprising storage vaults with remains of a system of carriage hoists and tracking. We are recommending the Braithwaite Viaduct for scheduling."
"The answer was given on the basis of initial advice from officials. However, before the answer was given, DTLR officials became aware at a late stage that the legal implications of the status of the structures adjoining the Braithwaite were not as clear as the original draft had suggested. Therefore they sought to amend their advice to Mr Jamieson by proposing the deletion of the last line of the proposed answer. Unfortunately this was not done before the answer was approved by the minister. Mr Jamieson will be writing to Ms King in order to explain the position".
In Debenham's Plc v Westminster City Council 1987 1 AC 396, Lord Keith said at p403G:
"All these considerations, and the general tenor of the second sentence of section 54(9) satisfy me that the word "structure" is intended to convey a limitation to such structures as are ancillary to the listed building itself, for example the stable block of a mansion house, or the steading of a farmhouse, either fixed to the main building or within its curtilage. In my opinion the concept envisaged is that of principal and accessory."
Usurping the planning authorities' function
"132. That leaves the issue of standing. As to that, it seems to me that there is an important distinction to be drawn between, on the one hand, a person who brings proceedings having no real or genuine interest in obtaining the relief sought, and on the other hand a person who, whilst legitimately and perhaps passionately interested in obtaining the relief sought, relies as grounds for seeking that relief on matters in which he has no personal interest.
133. I cannot see how it can be just to debar a litigant who has a real and genuine interest in obtaining the relief which he seeks from relying, in support of his claim for that relief, on grounds (which may be good grounds) in which he has no personal interest.
134. It seems to me that a litigant who has a real and genuine interest in challenging an administrative decision must be entitled to present his challenge on all available grounds."
"We have no difficulty in agreeing that the exercise of the court's discretion does not depend on whether it will attract popular support. If Mr Walters' rights have been breached the unpopularity of granting relief to him will not deter the court from granting it. However when there are other genuine interests which will be adversely affected, the court is not prevented from analysing precisely the rights of which a single or a few individuals have been deprived, and their consequent loss (in whatever form it takes) and the consequences of upholding their right contrary to the interests of many others. As the grant of judicial review may have substantial adverse consequences for a large number of blameless individuals beyond he applicant himself, in an appropriate case, of which this is one, the exercise of discretion permits account to be taken of these conflicting interests… .".
"The discretion of the court is a broad one to be exercised in the light of the varied and sometimes conflicting circumstances of each individual application, with particular attention in cases where delay is a significant factor, to be paid to the circumstances expressly specified in section 31(6)."
MR JUSTICE OUSELEY: For the reasons given in the judgment which is handed down, I am prepared to make a declaration in the terms which I will discuss with counsel, and I also give permission for the case to be brought.
MR CLAYTON QC: My Lord, I hope your Lordship has received a copy of the draft order.
MR JUSTICE OUSELEY: I did, thank you.
MR CLAYTON QC: Can I just briefly explain the rationale. The first declaration was an attempt to reflect the very wording your Lordship had in mind. The second declaration is in relation to, "A declaration is unlawful for the defendant to undertake demolition works in relation to the Goods Yard until the London boroughs of Hackney and Tower Hamlets decide whether the Goods Yard is a senile structure". My Lord, that is there for quite a number of reasons. First, it reflects the view that your Lordship expresses as to what the legal position is and, secondly, it ensures that the parties know where they stand in relation to that issue.
The third order which we seek arises for this reason: We invited the other side to indicate their views about this order. Silence has been the response, but the position, my Lord, comes to this, that legal proceedings were brought to preserve the Goods Yard. Your Lordship has decided that the question of whether they should be preserved depends effectively on an expert factual matter to be decided by the two local authorities. The injunction is sought to hold the ring until that arises, and given that these proceedings were brought, in our respectful submission 'to vindicate, effectively, the rule of law, we would submit is a concomitant that the ring is held until that is resolved.
MR JUSTICE OUSELEY: Yes, I think you are going to have difficulties with items two and three. One seems to reflect the judgment but I will hear Mr Barnes.
MR BARNES QC: May we just hand to your Lordship and to my learned friend the short order which we suggest. It is paragraph two which is the substance of it.
MR JUSTICE OUSELEY: That is simply the same thing in slightly more elaborate language.
MR BARNES QC: Not quite my Lord, no, because it does not deal with lawfulness and so forth, and I was hoping to ask your Lordship to look at four sentences and four paragraphs of the -- I had to work out a frame with the draft judgment we had at the beginning of the week.
MR JUSTICE OUSELEY: Yes.
MR BARNES QC: We were very surprised when we received -- I only saw yesterday evening the draft order which we have received from the claimant, in the light of what he understood to be the theme of your Lordship's judgment, which he understood to be that the start which had been made within time on the works permitted by this planning permission were in breach of one condition but no others, that is condition 21, but that your Lordship was not prepared to make declarations as to lawfulness and so forth.
MR JUSTICE OUSELEY: I am not prepared to make a declaration as to the lawfulness of the demolition or continued work. That is to say whether it would be lawful to demolish, or whether the permission has lapsed. But I think it is inherent in the judgment that development in breach of planning control is unlawful. Therefore, the excision of the word "lawful" in the first declaration proposed by Mr Clayton would be more of a sop than a reflection of the legal position. It would be balm to your soul, perhaps, not to have the word "unlawful" in a declaration, but it would not alter the nature of the act.
MR BARNES QC: It is clear from your Lordship's judgment that the work that was done was in breach of one of the conditions, 21, therefore plainly was a breach of planning control and, to that extent, in planning terms is unlawful. There is no doubt about that. I would ask your Lordship that in relation to that and the whole of it just to glance at paragraph 189. I think the paragraph numbers are the same. Page 83 of the original document.
"I consider that although it would be inappropriate, for the reasons which I have given, to declare that the demolition of the Goods Yard could be unlawful. Those reasons do not preclude a declaration that the development has commenced, but did so in breach of condition 21."
It is on the basis of that that we produced the short declaration that we did. If your Lordship would look to page 93 at paragraph 211.
"I have reached the conclusion that the development was commenced in breach of condition 21 but not in others. There is no point in the light of such a conclusion in declining to declare as much."
So we have sought to put such a declaration into words. Finally, if your Lordship would turn to page 96, paragraph 218. Right at the end of that, going to the top of page 96:
"The real effect of my conclusions is more limited than it would be were I to declare the development of the route or the demolition to be unlawful."
What we are really concerned with is what is in declaration two here, which seems to us, respectfully, to be running completely contrary to what your Lordship has said.
MR JUSTICE OUSELEY: Yes. Dealing with declaration one, I understood that you were jibbing at the word "unlawfully" in Mr Clayton's draft. It seems to me that his is a perfectly adequate reflection of the declaration which I am prepared to make. Your paragraph two is longer and it omits the word "unlawful" but I cannot see anything gained by that and I am quite content, for my part, with Mr Clayton's proposed first declaration in the order which, incidentally, if he is drafting, ought to have the permission.
MR BARNES QC: It did, it is our paragraph one.
MR JUSTICE OUSELEY: Let us focus on two and three.
MR BARNES QC: I would be perfectly happy if your Lordship would say they acted in breach of planning control and so unlawfully -- to indicate what the unlawfulness was. That is the only thing.
MR JUSTICE OUSELEY: I think it is clear, is it not? Unlawfully by undertaking material operations in breach of condition two.
MR BARNES QC: I will not press it any further, my Lord.
MR JUSTICE OUSELEY: Item two: the problem with item two is that that is not what I am prepared to do. The demolition of the Goods Yard may be perfectly lawful.
MR BARNES QC: My Lord, that is what we understood from the terms of the judgment. I referred your Lordship to what we considered -- certain key paragraphs of that.
MR JUSTICE OUSELEY: That is why I have some reservations about whether Mr Clayton is right in seeking this, because the purpose of it is -- one has to see this with the proviso of "until". That is the rule of purpose, Mr Clayton. You want to hold the ring by paragraphs two and three, that is your point. The problem with the declaration that you seek is that if I cannot, because I think I neither have jurisdiction nor would it in any other way would be appropriate, declare that the demolition would be unlawful, when it might very well be perfectly lawful for them to demolish it. It does not become unlawful while they are waiting for someone to decide. I have not said there has to be a decision by the authorities. They are the ones who have the power to decide whether it is one or more buildings, but if it is actually several buildings, they do not need the decision of the council's; that is, if it is several buildings, to do it. It is perfectly lawful for them to pull the whole lot down.
MR CLAYTON QC: I accept that. I am afraid, with respect my Lord, I part company with you at virtually every stage of what your Lordship has said. So far as jurisdiction is concerned, there is no jurisdictional bar to be ordered of declaration. It is simply whether it has utility. The jurisdiction is essentially very flexible.
MR JUSTICE OUSELEY: No, it is not a question of jurisdiction lending to the flexibility of declarations, it is declaring something to be unlawful when it is not decided that it is or is not, and it may very well be perfectly lawful. That is the jurisdiction point, and the decision as to whether it is one or more buildings is not one for this court. That is where I say I do not have jurisdiction.
MR CLAYTON QC: That I entirely accept, but the position that we would submit is twofold really. First, until the local authorities make a decision, the position remains unclear. We submitted that if your Lordship had looked in these proceedings -- it does not matter about that.
MR JUSTICE OUSELEY: I would not press for a view on the issue, Mr Clayton.
MR CLAYTON QC: The short point is this: because it is a matter for the local authorities to decide, because essentially it is a factual issue, the position remains unclear.
MR JUSTICE OUSELEY: Yes.
MR CLAYTON QC: I am perfectly content because one can get declarations about what is lawful as well as what is unlawful, for the declaration to say that it is neither lawful nor unlawful until the decision is made.
MR JUSTICE OUSELEY: No, it is lawful or unlawful now.
MR CLAYTON QC: Yes, but what it really comes to is this: the purpose of these proceedings was to seek a declaration as to the legal position. What your Lordship has decided is that the legal position so far as demolition is concerned is undecided until the local authority make a determination.
MR JUSTICE OUSELEY: If you are suggesting that what you want is a declaration that it would be unlawful if the position were that it was a single structure with The Braithwaite Viaduct, that reflects what I said in the judgment. That is not what you have asked for.
MR CLAYTON QC: No, I accept that. If that is the difficulty --
MR JUSTICE OUSELEY: I think it is important if you are asking for declaratory relief at this stage, for what you are seeking to be formulated with precision.
MR CLAYTON QC: My Lord, I entirely accept that and, of course, as your Lordship knows, normally the question of drafting the declarations is done through a spirited dialogue involving counsel, so I quite accept that. I am content, and we can reformulate the second declaration to reflect what your Lordship has just indicated -- that it would be unlawful if it comprises a single structure or building. So can I move on to the third point in that eventuality.
The third point is really this: that it would render your Lordship's view of what the legal position is entirely nugatory, if before the local authority made its appropriate decision, the building was knocked down. The one thing that one can say about a position which is uncertain, is that it justifies taking a step which creates -- basically A is irrevocable and its consequences, and B essentially undermines the purpose of the second declaration. Now, again, it may be that the injunctions are not happily expressed, and as to drafting I am entirely in everyone's hands, but the fundamental point which we make is that what has happened in this case is that the London Underground have failed to show that it is lawful to knock the building down here and now; that much is clear. Until that is lawfully established, when a public interest claimant brings proceedings to ascertain what the legal position is, it is, in our respectful submission, an inevitable corollary that the declaration having been granted, albeit that it is clear that it should be decided by someone else, that the subject matter of the material be preserved until that decision has been made.
MR JUSTICE OUSELEY: I think that is unfair. You are effectively asking this court to take on the power of a local planning authority or you are asking yourself to be treated as a local planning authority. You are not the local planning authority and I see no basis upon which you can purport to take on their function, and I think that that is the thrust of the point.
MR CLAYTON QC: With respect, my Lord, we are not saying that we are taking on the local authority. What we are simply saying is that precisely because it is a local authority function, until the local authority makes its determination, the court cannot -- it would be inappropriate for the court to pre-empt --
MR JUSTICE OUSELEY: It might be very different if you are the local authority; but you are not. Nothing stops the local authority coming to court today and seeking relief on the basis that it fears there is going to be a breach of planning control and it wants time. You are not the local planning authority.
MR CLAYTON QC: My Lord, can we just reflect for a moment on that. The judgment has been made available today. It is a complex judgment. The local authorities have not seen it. It is Friday. The prospects Of counsel being able to come to a view about what is the appropriate step to take by today is, with respect, not practicable. In our submission, at the very least, there has to be a sufficient opportunity for the local authorities to make a sensible evaluation. Now, again, if the position is that the time period we seek is too long, so be it, but in our submission, it is not open to arrogate to the defendant the option of destroying something before the local authority is able to take a view. So, in our respectful submission at the very least, and given that it is clear that although this is an urgent process, equally the process of arriving at a proper legal determination has taken itself some time, that there be a sufficient opportunity for the local authorities to digest what your Lordship says and seek advice.
I make that point particularly because your Lordship will note two things: 1, Tower Hamlets have expressed a view and it is plain wrong, and 2, Hackney have expressed no view.
MR JUSTICE OUSELEY: I do not think Tower Hamlets have expressed a view one way or the other in this case.
MR CLAYTON QC: Not on the Goods Yard, but what they did have to say from the boroughs solicitors about section 73 was plain wrong.
MR JUSTICE OUSELEY: Yes.
MR CLAYTON QC: And given the submissions made earlier, it is significant. In our submission, it would be appropriate for the local authorities to have the benefit of counsel to ascertain what the best course would be. Likewise, I should say, English Heritage may too have a role and they also should be given some opportunities. So what it comes to is if your Lordship is disinclined to grant an order in the terms of three, then I would suggest that certainly something like seven days would be appropriate, so that that gives sufficient time for counsel to be instructed and the view to be taken.
MR JUSTICE OUSELEY: I think my judgment contains another point which I am surprised that you have not picked up. Condition 12 also has to be complied with. I disagreed with Mr Barnes' submission as to the full ambit of condition 12, taking the view that condition 12 applied in relation to post 1997 listings, which means that before work is done -- and I think this is the point I was making in relation to condition 12 -- because of the proximity of the Braithwaite Viaduct to the proposed operational line, works would have to be undertaken in pursuance of condition 12 in order to satisfy that condition to make sure that the operation of the ELLX did not cause damage to the listed viaduct. Now, I think I have made it clear that they are expected to comply with that at about this stage, because clearly one could not regard the site of the Goods Yard as not encompassing, at least, the area around the Braithwaite Viaduct for those purposes. Now, it would seem to me that you might be saying that there ought to be a declaration that it will be a breach of condition 12 if the viaduct were to be demolished before compliance with condition 12. Do you want to ask for that? If that is so then you have to consider the implications of a declaration, if that would be unlawful to do work on the viaduct without compliance with condition 12, which is a declaration I could grant without usurping the functions of a local planning authority.
MR CLAYTON QC: I understand that and I would not suggest for a moment that a declaration in terms of condition 12 would not be valuable, but notwithstanding your Lordship's suggestion, the basic problem is that the question about the Goods Yard itself is unresolved until the local authority has an opportunity to look at it, and if, as I apprehend, your Lordship takes the view that the time period contemplated by the injunctions is too long, so be it, but what I would respectfully submit and submit strongly is that the local authorities must be given a proper opportunity to consider whether they wish to reflect on what your Lordship has had to say on the issue.
MR JUSTICE OUSELEY: Mr Clayton, the trouble with that argument is that, in fact, the local authorities have been aware of the issue of whether the consent of the planning authority was required for lawful demolition or not, as they have been interested parties in this litigation. They have not, it is true to say, taken any part in the litigation, but they have had ample time to consider the issue. You have had ample opportunity to ram that point home to me because it must have been obvious to you that these proceedings would be pointless if the Goods Yard could lawfully be demolished anyway.
MR CLAYTON QC: My Lord, yes. The answer to that is this: not uncommonly with local authorities, there has been a non-response entirely from Hackney and, in relation to Tower Hamlets, the only substantive response came after the end of the argument when the planning officer, who appears to have taken the lead in all of this, expressed a view. We invited the borough solicitor, who met the chief lawyer, to express if he will, and he understood what the view was. With respect to that view, it was wrong. The problem is that the local authorities, on the material before your Lordship, simply have not understood what the legal position is, which was the very reason why these proceedings were brought.
MR JUSTICE OUSELEY: You have not sought, at any stage, to challenge any exercise by the local authorities of any of their power.
MR CLAYTON QC: As your Lordship knows, this was part of the submission not reflected in your Lordship's judgment. Until there was a breach of planning control, it was not open for that to occur. There is no evidence that there was and that was not challenged by the defendants.
MR JUSTICE OUSELEY: There was a breach of planning control which could have been the subject matter of consideration no latter than February of this year. I understand the force of the point underlying what you are saying; that there is a risk that something untoward might happen until the local authority gets around to thinking about it. I understand that concern.
MR CLAYTON QC: My Lord, I would put it much more strongly than that. The fact of the matter is that your Lordship knows that these proceedings were issued precisely because the time of reckoning was to come. We have been told through the proceedings that the Goods Yard was about to go down and I am afraid, against that background, our position is that it is essential to give effect to your Lordship's judgment, that the local authorities have a sufficient period of time to absorb and reflect on your Lordship's judgment, otherwise the purpose of the judgment is less than it otherwise would be. That is the submission and I am afraid I would have to ask your Lordship to decide that.
MR JUSTICE OUSELEY: Mr Barnes, do you want to say anything about some form of restraint pending the consideration of either the issue of whether the Goods Yard is one or more structure, or, pending consideration by the councils, as to whether they would wish to take proceedings in court to give themselves more time?
MR BARNES QC: My Lord, just briefly, as I read your Lordship's long and careful judgment, the local planning authorities could take action under the planning legislation if they reached two conclusions. The first is that they would have to reach a conclusion that the physical entity or entities north of the Braithwaite constituted one single structure with it, and not a series of structures; otherwise, on your Lordship's judgment, it would be ultra vires for them to proceed.
Secondly, if they reached a conclusion that the whole thing was one structure so that they did have jurisdiction to take enforcement action, they would have to consider that it was expedient to do so in the words covering the enforcement notices. It is obviously right that the local authorities should have an opportunity to consider this judgment. My own clients have only been able to be told the gist of it one hour ago, and they themselves, of course, have not had an opportunity to do so yet or to go to the Board, or anything of the sort. My learned friend, as I understand it, is concerned that something might happen, like on Saturday, tomorrow morning, they will go in and start knocking the whole thing down. I understand that. What I would ask your Lordship is this: we would be prepared to give an undertaking to the court that we will not commence any works of demolition in relation to the structures north of the Braithwaite Viaduct, on the Goods Yard, until 9am on Thursday. We will undertake, also, to deliver today a copy of your Lordship's judgment, it is in a form in which we can now do that, to both of the local authorities. We will intend, very early next week, to write to them explaining exactly what our position is. If they then wish to take any opportunities available to them, they will have an opportunity to do so. I understand those opportunities to be: 1, of course, to issue an enforcement, and the other to issue a stop notice, and the third to themselves, to apply for an injunction to the court. They will have that opportunity; so, of course, would anybody else. My Lord, I would respectfully suggest that in doing that, we are being as reasonable as we can, avoiding any suggestion that over the weekend the whole thing is going to be knocked down before anybody can read what has happened.
MR JUSTICE OUSELEY: That is very helpful. What do you say about the declaration that Mr Clayton is seeking as a substitute for his "proposed to", which is that it would be unlawful for demolition to take place without further permission if the Goods Yard comprises a single structure with the Braithwaite Viaduct.
MR BARNES QC: My Lord, that again would be, in effect, not technically taking the position of the local planning authorities because whether it be unlawful or not, it is for them to decide whether it would be expedient to issue an enforcement notice. At the end of the day, if there be a breach of planning control of any sort against which enforcement action can be taken, it is for the planning authority to consider whether to take it or not, and when to take it or not, and what form to take any proceedings available to them or not. We tried to go as far as we can to see that there is not a quick knocking down in the next 24 hours, something of that sort, which would make it impossible in practice for them to consider it. Beyond that, it is for them, in my submission -- if declarations of that sort are made, it simply means that anybody can come to the court and say: I want a declaration that this is unlawful because it is a breach of planning control. That is then, so to speak, presented to the local planning authorities. They are able from your Lordship's judgment and the whole of it, to assess that which your Lordship has held to be lawful and unlawful and contingently lawful and unlawful in the same way as everybody else is. In my submission, the whole of it will be apparent from your Lordship's judgment and from the first declaration made; thereafter, it is for the local planning authorities, subject only to nothing happening within a very short period, one or two or three days, which would make it impossible for them to consider it. In my submission, that is the present situation and I request that your Lordship would so act and if your Lordship finds that undertaking which we have indicated to be helpful, I am authorised to give it. But I make it clear that in giving that, it is that we will not do something before that time. We are not necessarily saying we will do it then. One of the things that we would have to consider is the impact of condition 12, vibration, and what your Lordship has held about that. It is difficult for my clients to consider the whole of that when they have not had an opportunity until just about an hour ago of knowing what your Lordship has said. But they will consider it, all the same.
MR CLAYTON QC: My Lord, may I first of all express my gratitude to Mr Barnes and his clients for the undertaking offered and which we accept. In relation to the declarations, can I urge on your Lordship the value of actually having declarations so that people know where they are. In my respectful submission, the formulation which your Lordship suggested in respect of his second declaration does serve a purpose. It is obvious, if I may say so, that the declaration does not mean to the planning authority that it should issue an enforcement notice, no more than the first one does. Equally, I would respectfully suggest that your Lordship's indication that a declaration in relation to condition 12, that too, if I may say so, would be valuable because it means that the parties know precisely what issues they need to direct their thoughts to, in the light of your Lordship's long judgment, which, if I may say so, covers quite a lot of ground and it may not be immediately obvious unless flagged up by the declaration. I am sorry to have gone on so long, but in our respectful submission, the only obstacle to the declarations being given is whether they are not convenient. In our submission, all three declarations --
MR JUSTICE OUSELEY: What I am minded to do, Mr Clayton, is this: I am minded to grant a further declaration in addition to 1, which says that it would be a breach of planning control for demolition of the Goods Yard to take place to the extent that it comprises a single building with the Braithwaite Viaduct. It may be that there is further language which is required for that but I am prepared to grant a declaration, in principle, along those lines. I would be grateful in the light of that, if you and Mr Barnes would just discuss whether it needed to say permission lapsed, because there are two aspects to it. But I am prepared to grant that for the point of making that clear. I think so far as condition 12 is concerned, I think that may be a rather more difficult one to formulate. I think it is sufficiently flagged up in the judgment that there is a real issue which London Underground Limited will have to consider in relation to that, just as they will have to consider what they do about the -- what I call the interface between the LUL and the other parties. I do not think, in the end, that a further declaration on that can be capable of being drafted sufficiently punchly to make it be a declaration -- it will flag it up. So far as the injunction is concerned, in the light of what Mr Barnes has undertaken, and that ought to be embodied in the order as well, I consider that the local authorities will have had sufficient time, at least to decide whether they wish to take pre-emptive action, and they will also have time to ascertain more fully from LUL what its actual timetable, if any, is, so they will know whether they need to move now or Wednesday or Thursday, whatever it is. They will then have to make their own mind up. So if you will embody the first declaration, the altered second declaration, the grant of permission and the undertaking, I think that will cover the heads of relief or the main heads.
MR CLAYTON QC: Perhaps, my Lord, what we can do is, after the hearing, my friends and I could put our heads together and produce an agreed draft.
MR JUSTICE OUSELEY: Yes, and you can bring it in and I will sign it.
MR CLAYTON QC: Can I next move to another topic?
MR JUSTICE OUSELEY: I do not want to keep whoever is waiting because they have planes to catch at the end of the day, so if necessary I would postpone further argument on this unless we can deal with it very quickly. What are the two headings?
MR CLAYTON QC: The only heading left, my Lord, is the question of costs which, in my respectful submission, is a short matter. Our submission is that we came to court to seek declarations, declarations have been given. Clearly, the reason for coming to court has been realised, and we do not take the view, subject to anything that your Lordship may indicate to me, that this is a case where it is necessary to apply anything other than the basic principles, and that we have won.
MR JUSTICE OUSELEY: I am not sure about that, I will hear what Mr Barnes has to say. Do you want to say anything more about costs?
MR BARNES QC: Yes I do, my Lord. My learned friend has spoken, in my submission, to the exact contrary to what has happened. They have come to court to try to prevent this development taking place at the Goods Yard and, indeed, as a side way throughout the whole of the ELLX. Inevitably that was done. They have failed to do so. Our case throughout -- our fundamental case in our written statement and before this court is that at the end of the day, if there were any breaches, it was a matter for the local planning authority to decide. One of the main gists of your Lordship's judgment is that that is so and it is to that extent we have succeeded. We have succeeded in showing that there was a starting time, there was no breach of condition 12, there was no breach of condition 23, that there may be an exception to the Whitley Principle if the structures to the north of the Braithwaite are separate structures, that there has been no breach of condition A of the listed building consent, that there has been no breach of condition C of the listed building consent, that the listed building consents remain valid, extant and operable, and to us, of cardinal importance in your Lordship's judgment, that the listing of the Braithwaite Viaduct comprised that structure and not the whole of the rest of the Goods Yard, somehow affixed to it or within its curtilage, and that at the end it was a matter for the discretion of the local planning authorities.
My Lord, to a very large extent and, in our submission, in relation to the important matters which fundamentally concern us, we have succeeded. This is a legally aided application and it would be wrong, in my submission, that we should be obliged to pay the costs. In my submission, there should be no order for costs.
MR JUSTICE OUSELEY: The legal aid position does not bite on the principle of costs.
MR CLAYTON QC: It does not and actually because of the changes in the legal aid scheme, it is an extraordinarily unfair point to make.
If we are going to look at the scorecard, can I just remind your Lordship of what the issues were --
MR JUSTICE OUSELEY: We know what the issues were, can we get to the score line?
MR CLAYTON QC: The score line, I am afraid, is 6 - 1. It is a very bold submission to say the least. Just think about it for a moment. On the planning permission: lost. Whitley Principle: Lost. Listed building point: won, we did not take much time over it. (inaudible) point: lost. Demolition point: at best, no score draw. Claim is time boiled: lost. Claim should be dismissed on ground of prejudice: lost. Stamping: lost.
Now with the greatest of respect to my friend, what, in effect, his submissions come to is that we have lost because a public interest challenge cannot usurp the dysfunctions of the local authority. With respect to him, that was the very point we took on board in making the application.
MR JUSTICE OUSELEY: My decision is this. I am going to order the defendants to pay one half of the claimant's costs. I think that the claimants have succeeded, to some extent, on some of the their arguments, and in order to achieve their success they had to come to court. So it is right that that should be reflected. On the other hand, the principal relief which they actually sought has been refused. Indeed, all the relief, I think, that is set out in their claim has, in fact, been refused. They have failed on a number of key arguments which they raised, and whilst I think that no order for costs would reflect a score card, it would be inappropriate for that to be the reflection of costs because, as I say, the claimant has come to court and has obtained some relief which was contested throughout by London Underground Limited. So there will be an order for the payment of one half of the claimant's costs.
MR CLAYTON QC: My Lord, one last matter: an order of detailed assessment.
MR JUSTICE OUSELEY: And there will be an order for detailed assessment. Thank you very much to you all for your assistance.