QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (ON THE APPLICATION OF PPG11 LIMITED)
- and -
DORSET COUNTY COUNCIL
VIRIDOR WASTE MANAGEMENT LIMITED
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr.T Straker QC and Mr. A Fraser-Urquhart (instructed by Dorset County Council) for the Defendant
Mr. S Tromans and Mr. C Zwart (instructed by Pennon Group) for the Interested Party
Crown Copyright ©
Mr Justice Mackay:
The Town and Country Planning (Environmental Impact Assessment) Etc. Regulations 1999 ("The 1999 Regulations") transpose into English domestic law the Council of the European Communities Directive 85/337/EEC. That Directive recited among other things that its intention was that development consent likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of the project and that such assessment should be carried out on the basis of appropriate information. Article 2 read:
"Member states shall adopt all measures likely to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effect."
"Grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration …. "
"Development likely to have significant effects on the environment by virtue of factors such as its nature, size or location"
Regulation 2(1) continues:-
" "Environmental information" means the Environmental Statement including any further information, any representations made by any body required by these regulations to be invited to make representations, and any representations duly made by any other person about environmental affects of the development;
"Environmental Statement" means a statement – (a) That includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of the assessment, reasonably be required to compile, but (b) that includes at least the information referred to in Part II of Schedule 4."
"1. A description of the development comprising information on the site, design and size of the development.
2. A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.
3. The data required to identify and assess the main effects which the development is likely to have on the environment.
4. An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for his choice, taking into account the environmental effects.
5. A non-technical summary of the information provided under paragraphs 1-4 of this part."
In this case there was no dispute but that this was an EIA Development, it being "likely to have significant effects on the environment". This did not in my judgement necessarily mean that the developer anticipated that it had likely significant effects in relation to the flora and fauna of the area; the environmental impact of this project was all too obvious in terms of traffic, noise, pollution and visual amenity. To take but one example, it was envisaged that at its peak there were proposed to be 46 deliveries of waste each day to this site.
"….. other imperative reasons of overriding public interest including those of a social or economic nature ….."
"Every competent authority in the exercise of any of their functions shall have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions"
Dorset is plainly a "competent authority" within the definition regulation.
"Regulation 39 …. [does] not apply to anything done for any of the following purposes under and in accordance with the terms of a licence granted by the appropriate authority.
2. ……..(e) ….. other imperative reasons of overriding public interest including those of a social or economic nature …."
Viridor applied for planning permission on the 22nd December 1999, incorporating within its application an Environmental Statement dated December 1998. This had in fact been circulated informally in draft in March 1999 and there had been consultation on it. Revisions had been incorporated in the statement prior to its submission together with the planning application. There is no issue but that in its description of the development proposed it complied with Schedule 4 Part II paragraph 1 of the 1999 Regulations. In addition to the features of the project already described earlier in this judgment, road access to the landfill site proper had been so designed as to by-pass the northern SNCI to the west, thus running over an area which was a mixture of arable land, scrubland and an area used as a motorcycle scramble track. It impinged on the SNCI only at its northern tip, which it crossed for a distance of some 160 metres. Only 60 metres of this section of road were said to cross heathland proper, the remainder passing through woodland and/or scrub.
"On completion the site will be restored with heathland and vegetation. This will considerably enhance the site, as it will reconnect two areas of Significant Nature Conservation Interest presently separated by the quarry. The landfill and land raise will restore the north/south overland flows which will improve the supply of water to wetland areas north and south of the site. The resulting improvements in habitat will benefit the ecology of the area."
"The proposed development has been designed to avoid the [SNCI's] and therefore minimise the impact on these areas. The final landscaping of the landfill will help restore an area of derelict land and the introduction of an agreed management plan for the southern mire will prevent its further decline."
" ……. small pockets of regenerating heathland – and parts of this area may well provide some limited habitat for reptiles whilst vegetation in these areas could also provide nesting sites for Nightjar and Woodlark as well as Dartford Warbler. However the scale of mitigation measures being imposed including management of the whole of the SNCI, would make available considerably more habitat for these and other bird species than is currently available….. provided these measures can be properly secured (and I am recommending appropriate conditions and a use of a Section 106 Planning Agreement to cover this) I am satisfied that it would provide adequate mitigation for any territorial loss or disturbance that would result from the development.
9.48 Provided those measures are adequately secured, it is considered that in this particular case the planning authority can reasonably and rationally conclude that there would not be "significant adverse effects" on protected species or important areas for nature conservation."
As this carefully chosen language suggests, the Director had in mind a decision of this Court (R –v- Cornwall County Council, ex p. Hardy  Env.L.R. 25, 473.), to which I will have to refer later. He said in terms that he thought the situation his council faced was a different one from that faced by the Council in that case.
"The nature of the species and habitat involved means that concerns relating to protected and other birds can be adequately addressed through a combination of ensuring mitigation measures are in place prior to any clearance of nesting or foraging areas and then restricting tree felling and scrub clearance so that it does not take place during the bird breeding season. Similarly the scope of the mitigation being proposed (with the additional measures being recommended in conditions) means that reptiles/herpetofauna present in areas around the site margin and along the line of the proposed access and office/weighbridge area can satisfactorily be addressed by a condition providing for survey, capture and translocation."
The Director recorded that "given the importance of this issue" the County Ecologist had consulted English Nature on the conclusions and approach; they had accepted it but wanted greater weight to be given in the form of their incorporation into a legal undertaking.
"….. although he considered that a full fauna survey on the effects to (sic) reptiles and birds would have been helpful he did not feel that this would prevent him from concluding that, given the use of conditions to regulate any granting of permission, the measures being proposed would not have any significant adverse effects on either species, habitat or environmentally sensitive sites in the area."
He pointed out that the proposals to restore the site to dry heath were welcome and would benefit the bird population, and the proposals to secure management of the adjoining SNCI were a "very substantial ecological benefit". He also informed the committee (recorded at 2.14) that there was:
"…… no recent evidence of highly protected or endangered species on the proposed landfill site and associated areas. The effects on any reptiles present such as the sand lizard or smooth snake would be minimal, both in terms of their low numbers and the ample scope for their relocation if necessary. Should there be a need for relocation (particularly in the case of the smooth snakes which might reside in the vicinity of the proposed access road) an application for a licence for their handling and removal would need to be made to [DEFRA]."
The committee concluded on this topic:-
"Objectors considered that the information provided had been incomplete, given the absence of a survey, and that there were still inconsistencies and scope for conjecture in the Director's report regarding environmental issues. Nevertheless, the County Ecologist was satisfied that there was sufficient information to enable him to advise that there were no likely significant adverse effects".
"….. likely to be very slightly adverse at worst. I could not conclude that effects were significantly adverse".
The conditions subsequently imposed were therefore imposed as a matter of prudence only, or "belt and braces" as Mr. Straker QC calls it in his skeleton argument for Dorset.
"(a) ….. carry out a further habitat survey of the Trigon Heaths SNCI ….. and, based on that survey, to identify a detailed rolling programme of habitat maintenance and enhancement measures; …..
(c) Provide a detailed terrestrial survey to identify the presence, size and territory of any protected species (including a survey for badgers and any European protected species especially reptiles), within the site and adjacent land ….. and
(d) Identify all necessary arrangements and provide (i) for the rescue of reptiles likely to be affected by the development and their translocation …. (ii) mitigation measures in relation to badgers and other protected species".
When this case was argued before me there was no binding authority directly in point on the issues with which I have to deal, but there were no fewer than seven recent first instance decisions of this Court by judges of great experience in this field.
"One is not seeking certainty as to the environmental effects of the project, which would be unobtainable, one is merely seeking the specified information that will enable the likely significant effects to be assessed. While it is for the local planning authority to judge the adequacy of the specified information …. information that is capable of meeting the requirement for specified information in para  must be provided".
He held that the description of the development must be sufficient to enable the main effects that the development is likely to have on the environment to be identified and assessed, to enable the likely significant effects on such matters as flora and fauna to be described and to enable mitigation measures to be described where significant adverse effects are identified. Although it was not in issue in that case Mr. Fordham says it is significant to note the sequence of decision-making that Sullivan J. appears to set out. He held that it was no answer to say that some of the specified information would be provided in due course at the reserved matters stage, since if significant adverse impacts are identified at that stage it would be too late to prevent the development from proceeding. He continued:
"…. that is not to suggest that full knowledge requires an Environmental Statement to contain every conceivable scrap of environmental information about a particular project. The Directive and Assessment Regulations require likely significant effects to be assessed. It will be for the local planning authority to decide whether a particular effect is significant, but a decision to defer a description of a likely significant adverse effect and any measures to avoid, reduce or remedy it to a later stage would not be in accordance with the terms of Schedule , would conflict with the public's right to make an input into the environmental information and would therefore conflict with the underlying purpose of the Directive."
"The local planning authority are entitled to say "we have sufficient information about the design of this project to enable us to assess its likely significant effects on the environment. We do not require details of the reserved matters because we are satisfied that such details, provided that they are sufficiently controlled by condition, are not likely to have any significant effect."
At 126 he found that while the Council had deferred its decision on some matters of detail which "may have some environmental effect" it had not deferred a decision on any matter which was "likely to have a significant effect". He categorised the Claimant's criticisms of the Council as unreal and stemming from an over literal interpretation of the words of the Schedule, saying that in the case of the bats and newts he did not see why the paragraph 2 questions should not comprise the undertaking of further surveys and discussions and the devising of detailed mitigation measures in the light of what those revealed. Dorset say that this authority countenances an interpretation of the regulations which permits the working out of certain details subsequently to the grant (here those in relation to mitigation measures) and that it also shows that the deferral of such measures does not necessarily mean that the Environmental Statement itself is defective in a material respect.
"Can [the Council] conclude that there would be significant effects, save for the fact that they have required (or at least will require) the developer to take mitigating steps whose effects [will be] to render such effects insignificant? In my judgement they cannot".
His reason was that this would short-circuit the democratic input into the question of whether the proposed measures would be successful or whether there were better or more effective measures which could be adopted in their stead. The question of whether or not there are likely to be significant environmental effects should be approached by asking whether these would be likely to result, absent some specific measures being taken to ameliorate or reduce them. As he put it:
"…. if they would, the Environmental Statement is required and the mitigating measures must be identified in it".
"….there would be potentially highly significant effects on the archaeology unless measures are directed to eliminate them. Accordingly Mr. Scott erred in law in taking these measures into account when deciding that no significant effect was likely."
If, therefore, it is right to say that the approach to Schedule 4 questions is fact-sensitive it is plain that the facts in BT were strong from the Claimant's point of view.
"In short whilst I and my senior officers appreciated the existence of potential [significant] adverse impact in some respects we agreed that in every respect such impact would be insignificant given proper planning conditions and management enforceable under Section 106".
That the word I have inserted in square brackets within this quotation needs to be added is apparent from paragraph 40 of the Judgment. This is the case which has given rise to what Mr. Fordham calls "the Lebus trap", articulated he says at paragraph 41 of the Judgment, to the effect that it is an erroneous approach to link the conclusion as to whether or not there are likely significant adverse effects with the mitigation measures to be put in place to counter them. The Judge's criticism of what happened in that case was:
"The question was not asked whether the development as described in the application would have significant environmental effects, but rather whether the development as described in the application subject to certain mitigation measures would have significant environmental effects".
This approach he condemned as wrong in law; but it is to be noted that he sounded a note of caution at paragraph 45 to the effect that:
"Each case will no doubt turn upon its own particular facts, and whilst it may well be perfectly reasonable to envisage the operation of standard conditions and a reasonably managed development, the underlying purpose of the regulations in implementing the Directive is that the potentially significant impacts of a development are described together with a description of the measures envisaged to prevent, reduce and, where possible, offset any significant adverse effects on the environment. Thus the public is engaged in the process of assessing the efficacy of any mitigation measures".
Dorset seize on this acknowledgement that these statements must be considered on their particular facts. Where, they argue, there is an Environmental Statement it must be legitimate for there to be some areas where the local authority can be allowed to form its view by reference to the development as a whole in all its aspects, and one of those views can be that there is no significant adverse environmental effect. This overall view can include such matters as the overall long-term ecological benefits of the Scheme, the long-term management regime that will be put it place, and any relevant conditions. They argue that in this case the evil that is pointed out in the cases we have seen so far has not come to pass here, in that the evidence is there was extensive public consultation on all matters including the mitigation proposals. It was the absence of public consultation on mitigation matters which seems to have been critical in Tew, BT and Lebus.
"to establish the nature, extent and degree of the contamination present on the site",
and that it should also;
"Propose a scheme for remediation of this contamination including measures to be taken to minimize risk to the public.."
This therefore was a case in which the public had no opportunity at all even to inform itself of what the problems of contamination associated with this development might be, let alone put forward any objections on an informed basis or proposals for remediation/mitigation. In his Judgment Richards J. discussed the decisions in Tew, Milne, BT and Lebus extensively as well as Hardy a decision to which I will have to return.
"Thus as it seems to me it was clearly contemplated that various requirements relating to mitigation measures or feeding through into mitigation measures could properly be taken into account in assessing the likely significant environmental effects of the development".
Nevertheless, he agreed with the essential rationale, as he called it, of BT and Lebus, while apparently approving the notion that the matter is one of fact and degree.
" …with a view to gaining a better understanding and possibly minimising any adverse effect" (emphasis added)
was something which he plainly did not view as inconsistent with the decision which they had formed, namely that no EIA was necessary because the development was unlikely to have significant effects relating to bats.
"However, the Environmental Assessment …. raised a number of issues of nature conservation concern relating to protected and/or uncommon species. These included bats, badgers and a nationally scarce Liverwort. English Nature and the Cornwall Wildlife Trust have indicated that these aspects would require further study by the applicant before the development was commenced and appropriate mitigation required as part of any subsequent consent. This can be achieved by appropriate planning conditions. The application therefore raises no significant nature conservation issues and further mitigation can be required by planning condition. The proposed restoration will, in my view, add to the nature conservation value of the entire landfill/raising site in the long term ….." (emphasis added)
"….. Whether the respondent could rationally conclude that those nature conservation aspects [sc. the impact on bats, badgers and liverwort] did not amount to "significant adverse effects"."
The crux of the case at paragraph 60 was his finding that it was difficult to see how the committee could have accepted its Director's advice in the light of their acceptance of the advice of English Nature and Cornish Wildlife Trust. He pointed out that bats were a European Protected Species. If their presence was revealed by the surveys and it was found that they were likely to be adversely affected it was in his view -
" …. an inescapable conclusion having regard for the system of strict protection for these European Protected Species that such a finding would constitute a significant adverse effect ….."
He therefore held at paragraph 62 that having decided that those surveys should be carried out the planning committee;
"… simply were not in a position to conclude that there were no significant nature conservation issues until they had the results of the surveys"
He therefore found that the decision to accept the environmental statement in that case was irrational.
Before I had the benefit of the Court of Appeal's decisions in Gillespie, with which I deal below, the following principles seemed to me discernible:
(1) The EIA scheme exists to ensure that planning decisions involving significant effects on the environment are taken by bodies with full information as to the relevant factors (Brown at 404D; Directive, Recital 6 and Article 2)
(2) A further purpose of the EIA Scheme is to enable democratic participation in such decisions (BT 73; Lebus 45)
(3) The adequacy of environmental information contained in an Environmental Statement is a matter for the judgement of the planning authority, with which the Court will only interfere if it is proved to have been exercised irrationally (Tew 29; Hardy 56; Jones 48; Milne 95, 106).
(4) In whatever sequence the planning authority considers the minimum requirement provisions of Schedule 4 Part II of the 1999 Regulations, it is not necessary in every case for it to consider each paragraph of Part II strictly ignoring all material advanced in relation to other paragraphs in that Part (Milne 114; Gillespie 76)
(5) The extent to which it is lawful to consider paragraph 2 matters in assessing the adequacy of paragraph 3 material may depend on the nature of the development proposed and of the mitigating/remedial measures to be taken into account (Lebus 45; Milne 114; Gillespie 76)
(6) The imposition of a condition requiring further investigation of a potential adverse effect is neither necessarily nor invariably an erroneous approach in law, or evidence of an irrational assessment of the adequacy of the environmental information (Jones 57, 59 and 62; Hardy 65; Milne 132)
(7) Not all adverse effects are significant adverse effects: (it is to be noted that Dorset's Director described this distinction as "the critical issue" in evaluating an Environmental Statement – 9.41) (Jones 56).
(8) It is not "every scrap of information" which has to be considered in a paragraph 2 assessment Tew 98A-B; Milne 135 (a flexible attitude to compliance with a given paragraph's requirement may be appropriate, even in the case of paragraph 1 information) (Milne 89).
After the conclusion of the argument the parties told me that the decision in Gillespie was being considered by the Court of Appeal and I agreed to suspend my Judgment pending publication of their decision and the submission of further written argument on its effect.
(1) Each case will turn upon its own particular facts (para. 34).
(2) The decision as to whether an EIA is required (as was the issue in Gillespie) is a judgment different from and to be made before an assessment of the procedures appropriate if an EIA is held to be required. (loc. cit.)
(3) In deciding whether an EIA is necessary the Secretary of State was not required to "shut his eyes to" the remedial measures or,
"put into separate compartments the development proposal and the proposed remedial measures and consider only the first when making his screening decision" (para 36).
Thus it seems to me the "Lebus trap" loses much of its spring.
(4) The extent to which remedial measures can be taken into account when making a screening decision will depend on their nature. If they are "modest in scope, or …. plainly and easily achievable" (Pill LJ at 37) or "plainly established and plainly uncontroversial" (Laws LJ at 46) or "of limited impact or well-established to be easily achievable with ….. the development" (Arden LJ at 49) then the decision maker can properly take them into account in forming the decision that the project would not be likely to have significant adverse effects on the environment.
(5) The approach of Sullivan J in Milne was correct.
(6) The seven principles which I drew from the first instance decision, and set out at para 47 above, have not been overruled by the Court of Appeal. However the kind of mitigation measure on which it was permissible to rely was not to be defined by whether it was of the "standard" type (as per Lebus para. 45, approved by Richards J in Gillespie itself) but rather by the definition in (4) above.
Mr Fordham's second ground, not to be found in the original claim, is based on the Directive and the 1994 Regulations, the relevant terms of which I have set out at paragraphs 11 – 14 above. He argues that Dorset failed to "have regard to" the requirements of the Directive when exercising its planning functions in this matter. In his report to the Committee (paragraphs 5.3 and 5.4) the Director summarised accurately the effect of Regulation 39 and gave an outline of the DEFRA licensing system. He advised that applications for any such licences had to meet three tests under Regulation 44, and that DEFRA generally expected the planning position to be resolved before addressing these matters. His advice seems to have been concise and accurate.
"contemplate the likely decisions that others will take in relation to details where those others have the interests of the environment as one of their objectives"
MR JUSTICE MACKAY: In accordance with the judgment submitted in draft and approved by me, I formally hand down judgment in this matter. Any person in court having an interest in this case, or any member of the press wishing to see the judgment, may obtain copies this morning. I hope there is a sufficient number in court, if not, my clerk can provide further copies.
Now, who wants to say anything? Mr Fraser-Urquhart?
MR FRASER-URQUHART: My Lord, I make an application for my costs in this matter.
MR JUSTICE MACKAY: The only order that is needed is that the claim is dismissed, is that right?
MR FRASER-URQUHART: That is right, my Lord, yes.
MR JUSTICE MACKAY: And no controversy about that, I imagine.
MR FRASER-URQUHART: I think not.
MR JUSTICE MACKAY: You apply for your costs. I have a statement of costs. Can I hear from the claimants as to whether this is opposed in principle, or whether there are any submissions you want to make on the quantum of the claim.
MISS GALLAFENT: My Lord, I am adopting something of a halfway house, if I may.
MR JUSTICE MACKAY: Yes, of course.
MISS GALLAFENT: In the particular circumstances of this case, I do say that it is open to the claimant to ask that there be no order as to costs. I say that for three reasons. Firstly, this is, of course, a matter of wider public interest than simply to the members of PPG11 Limited. Secondly, as your Lordship's judgment recognises, until the Court of Appeal decision in Gillespie was handed down, which was after the closing of argument in this case, there simply was not an authoritative guidance on the issues raised by the claimant's application, although there were a plethora of first instance decisions pulling in somewhat different directions. Thirdly, as your Lordship has found at page 32 of your judgment, according to Gillespie, effectively, the Lebus trap on which the claimant placed reliance lost much of its spring. The type of litigation measure on which it was permissible to rely was re-characterised by the Court of Appeal in Gillespie also. So, in my submission, it was entirely appropriate and proper for this case to be brought by the claimant in those circumstances.
In all the circumstances, whilst I could ask for no order as to costs, I do ask for an order that the costs be limited to £10,000 in favour of the defendant, Dorset County Council. I do that because there was some correspondence prior to the original hearing in December last year, in which the defendant indicated they would be seeking security for costs.
MR JUSTICE MACKAY: I remember there was talk about that.
MISS GALLAFENT: That is right. That was resolved with a payment of £10,000 being held in the client account of my instructing solicitors.
MR JUSTICE MACKAY: Yes, that was the sum.
MISS GALLAFENT: I can give your Lordship a reference to the correspondence on that point.
MR JUSTICE MACKAY: If it is not controversial, you can just tell me; anyone can take you up on it, if it is. I do remember something being said about that.
MISS GALLAFENT: Exactly. Clearly, Dorset County Council indicated, on that basis, that they would not pursue an application pursuant to costs, but they reserved their position to seek to recover their full costs. I ask, in all the circumstances, that Dorset do not recover their full costs. I point out, firstly, that the estimate of their costs, at the time when security costs were sought, was just over £15,700. That now appears, according to the statement -- which I saw for the first time only shortly before your Lordship came in this morning -- to be the sum of £24,000. It is, of course, a matter for your Lordship. If you are being asked, as I understand your Lordship to be, to summarily assess the costs in this matter, I do say that, striking an interest between all the parties, it would be appropriate simply to limit this costs application to the £10,000 held. Of course, PPG11 Limited is a company limited by guarantee, that was formed for the purposes of this litigation.
MR JUSTICE MACKAY: It was formed for the purposes of this litigation, absolutely.
MISS GALLAFENT: At all times, it has been quite open about that.
MR JUSTICE MACKAY: There is no secret about that. I know you have only just received this; so have I. It is not an unfamiliar problem, if I may say so, with a summary assessment of costs. I have to say that nothing leaps off the page of this bill as being obviously excessive. Is there anything you want to point to, apart from your other points, to say that this is in any way too much?
MISS GALLAFENT: The only point I would make in relation to the December hearing is that, of course, that hearing was adjourned by Gibbs J.
MR JUSTICE MACKAY: Someone was ill, were they not?
MISS GALLAFENT: In fact, it was Mr Fordham who was taken ill that morning, and regrettably could not attend. The parties agreed, for which we were obviously very grateful, that an adjournment was appropriate. In those circumstances, I would wonder whether it was appropriate that the claimant should pay the briefing for the hearing on December 2002 when, in effect, that briefing is then, at a slightly reduced rate but not, as it were, a zero rate, replicated for the February 2003 hearing.
MR JUSTICE MACKAY: It was a day and half that it went in February, was it not? I am trying to remember.
MISS GALLAFENT: Yes. It was just over a day and a half.
MR JUSTICE MACKAY: Did we get into the second afternoon?
MISS GALLAFENT: Yes, we did.
MR JUSTICE MACKAY: Yes, I see. So those are your submissions. I have not heard anything from Mr Tromans. What is your position in all this?
MR TROMANS: My Lord, I am not intending to make an application for costs for the interested party.
MR JUSTICE MACKAY: So you have nothing to say to me really. Thank you very much.
Mr Fraser-Urquhart, I am not struck by the notion that any of these costs are outrageous. If you were to get your costs, and if I were to assess them summarily, I cannot see anything much wrong with this as a bill, except perhaps that, assuming you and your leader prepared this matter for the hearing on 11th December, which I am sure you did, you did not have to do too much warming-up, if I may say so, seeing that it came on within a couple of months of that date. But I do not think there is much wrong with the £23,900. What about the three in principle arguments that are raised?
MR FRASER-URQUHART: It seems to me, my Lord, that those arguments, which could apply in many cases, cannot, in my submission, displace the normal principle that costs follow the event, and that those seeking or choosing to bring a challenge to a decision of a local authority by means of an application for judicial review, and, of course, they are entirely entitled to do so, carry the risk that in the event they fail, they bear the costs to which they put the authority. In my submission, there is nothing exceptional in this case, and nothing exceptional in the state of the law as it existed before the matter came to your Lordship which should displace that normal principle.
MR JUSTICE MACKAY: And the fact is that if the legal landscape changes in the course of the case, that is one of the many risks of litigation; not that it did change, perhaps, that dramatically.
MR FRASER-URQUHART: No. With respect to my learned friend, I think she slightly overplays the effect that the Gillespie decision had, in any event.
MR JUSTICE MACKAY: It was more a clarification.
Miss Gallafent, you have put it extremely well, but I am sorry to say I am against you. I think the normal consequences should apply here. You are right to say there is a wider public interest, but those who litigate in order to assert that interest do so at risk of costs if their grounds are unsuccessful. I do not regard Gillespie as having moved the goalposts to any very great degree, although it gave great assistance in clarifying the earlier decisions. In any event, as I have just said, it is a risk of litigation that these things can happen in the course of a case, even, as here, after the argument concluded.
Sympathetic though I am to the position of your clients, it is a hard fact that one embarks on these hearings at a risk of costs. They have not succeeded. The normal principles should apply. The respondent, Dorset County Council, should have its costs against the claimant, which I summarily assess. I will reduce this bill a little, because I think there is an element of repetition in the original brief fee and the repeat fees, and assess it at £22,000.
Are there any other applications?
MISS GALLAFENT: My Lord, no.
MR JUSTICE MACKAY: Can you both please convey to your leaders my gratitude for their assistance; and can you, Mr Tromans, receive directly my gratitude for your assistance in this interesting case.
With these hand downs, one receives a piece of paper which says, "Should this judgment go on the internet?" The criterion, according to the piece of paper, is whether it is of "great public importance". It seems to me that the three of you might be better placed to have a view about that than I do. I have to say, my initial reaction was that, interesting though it was, and of strong local importance, I did not think one more first instance decision on this point was of great public importance. Unless anyone wants to persuade me to the contrary, it will be for others to decide whether it should be reported anywhere or not. I think that is the best way of leaving it. All right, so be it. Thank you.