QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of
IAN RICHARD PRIDMORE
JO-ANNE LOUISE PRIDMORE
TERENCE GEORGE DODD
|- and -
|SALISBURY DISTRICT COUNCIL
|- and -
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)
Simon Pickles (instructed by Salisbury District Council) the Defendant
Crown Copyright ©
MR JUSTICE NEWMAN :
i) a failure to have regard to material considerations relevant to a highway access;
ii) the giving of misleading guidance on tandem development to the planning committee;
iii) a misunderstanding, on the part of the officer giving the report to the planning committee, as to the meaning of PPG3.
Each of (i) to (iii) are contested by the Council
THE ESSENTIAL FACTS
THE STATUTORY REQUIREMENTS IN RELATION TO NOTIFICATION
“A local planning authority shall not entertain an application for planning permission unless any requirements imposed by virtue of this section have been satisfied.”
I have already drawn attention to the penalty for a knowingly committed breach.
“Subject to paragraph (2), an applicant for planning permission shall give requisite notice of the application to any person (other than the applicant) who on the prescribed date is an owner of the land to which the application relates….
(a) by serving the notice on every such person whose name and address is known to him ….”.
By Article 6(5)(a) the “prescribed date” is 21 days before the date of the application. It follows that, once an application has been submitted without due notice to an owner, the requirement cannot be fulfilled. The consequences of non-fulfilment are that the application should not be entertained by the local planning authority (see section 65(5)) and the application should not be determined (see later under article 20(5) of the GDPO). On this occasion, the local authority knew of two false certificates, knew that notice had not been given and that it was possible for it to be given and proceeded to entertain and determine the application.
“Where an application for planning permission is made, the applicant shall certify, in the appropriate form prescribed in Part 2 of schedule 2 to this Order or in a form substantially to the like effect, that the requirements of article 6 have been satisfied…”
It can be seen from the detail of the above provisions that the clear intention of the statutory scheme is that an owner of land included in the proposed development should be given prior notice of an intention to submit a planning application and that the obligation to give such notice falls on the applicant for permission.
“(1) A local planning authority shall, in determining an application for planning permission, take into account any representations made, where any notice of the application has been:
(a) given by site display under article 6 or 8, within 21 days beginning with the date when the notice was first displayed by site display;
(b) served on
(i) an owner of the land or a tenant of an agricultural holding under article 6, or
(ii) an adjoining owner or occupier under article 8,
within 21 days beginning with the date when the notice was served on that person, provided that the representations are made by any person who satisfies them that he is such an owner, tenant or occupier; …”
It follows that the right to receive a notice gives rise to a requirement, on the part of the recipient, to make representations within 21 days in order, in turn, to impose an obligation on the local planning authority to take the representations into account.
“20 (1) Subject to paragraph 5, where a valid application under article 4 or regulation 3 of the 1988 Regulations (applications for planning permission) has been received by a local planning authority, they shall within the period specified in paragraph (2) give the applicant notice of their decision or determination or notice that the application has been referred to the Secretary of State”.
The relevant period, according to subsection (2), is a period of eight weeks beginning with the date when the application was received by the local planning authority. Subsection (3) states, as material:
“For the purposes of this article, the date when the application was received shall be taken to be the date when each of the following events has occurred-
(a) the application form or application in writing has been lodged with the authority mentioned in article 5(1);
(b) any certificate or documents required by the Act or this Order has been lodged with the authority;
Article 20(5) provides:
“Subject to paragraph (6), a local planning authority shall not determine an application for planning permission, where any notice of the application has been –
(a) given by site display….”
(b) served on an owner of the land …or to an adjoining owner or occupier under article 8
before the end of the period of 21 days beginning with the date when the notice was served on that person;…”
(1) Mr Docking failed to notify the Pridmores of the planning application as he was required to do pursuant to section 65(5) of the T&CPA and article 6 of the GDPO.
(2) Mr Docking (or his agent acting on his behalf) completed a false certificate of ownership which wrongly certified that he owned the whole of the land covered by the application.
(3) Mr Docking (or his agent acting on his behalf) thereafter completed a certificate which falsely stated that the application had, on 2nd December 2003, been served on the Pridmores as owners of part of the land included in the application. On the evidence before me, no such form of notice was served on 2nd December 2003 or at any other time.
(4) Since the application was dated 14th October 2003, it was manifest that, even if notice had been given on the 2nd December 2003, prior notice of the application had not been given. It has not been suggested that prior notice of an amended application, where the original application has not been the subject of prior notice, satisfies article 6 of the GDPO.
(5) Between 22nd October (at the latest) and thereafter the Council entertained the application knowing that false certificates had been lodged.
(6) The application for permission was determined on 16th December 2003. Even if the false revised certificate had been regarded as valid, article 20(5)(b) stipulates that the planning application cannot be determined within 21 days of the service of the article 6 notice on the owner.
(7) The Pridmores received notice of the original and amended application from the Council, given to them in their capacity as neighbours. Notice of the amended application was given less than two weeks before the date on which the matter was determined.
“I asked that if they wished to continue with the application then as Mr and Mrs Pridmore's representations indicated that the Applicant did not own all the land within the red line, I asked for notice to be served on the neighbour at No. 36 and for an appropriate Certificate B to be filed with the application”.
It is difficult to see what it was hoped would be achieved by this if, by “the application”, she meant the existing one, since an appropriate Certificate B could not be filed in connection with the existing application. If she meant to refer to the application continuing by means of a fresh application being lodged, her subsequent behaviour is difficult to understand for she accepted an amended application.
“However, the Applicant was unwilling to withdraw his application and, on 27 November, his agent submitted amended plans”.
No doubt because the amendments reflected the advice she gave on the 11th November, she does not appear to have considered the changes as they might have affected vehicles turning in the garage area to leave the property. She states (para 9):
“I returned the amended application form to the agent because details regarding the Certificate had not been completed correctly. I asked for the correct completion of the Certificate B and confirmation of when notice had been served on the neighbour at No. 36”.
The nature of the error which caused her to send the amended application back is not disclosed. It follows that Mr Docking, by his agent, committed these errors in connection with the requisite certificates. The suggestion by Mrs Wallace that there could be a correct completion of Certificate B could only arise if she thought that the Pridmores had been notified prior to the 14th October (the date of the application). Since the error originally made was to ignore their ownership and certify that the applicant was the owner of all the land, it is difficult to see what Mrs Wallace had in mind.
THE LAW ON VOIDABLE DECISIONS
Main v Swansea City Council (1984) 49 P & CR 26.
“That certificate, however, was not the certificate that, on the facts, was required by section 27. The outline planning application related to land that, although almost wholly owned by the council, was owned as to a small, but not de minimis, part, by some person or persons whose identity was at the time, and still remains, unknown. ”
“….(a) the certificate was inaccurate in what it did state, for notice had not been given to all the owners; and (b) that the newspaper publication designed to ensure that the application should come to the notice of unidentifiable owners had not been effected. ”
“There is, however, no evidence to establish that, either when the certificate was submitted or when the outline permission was granted, it was known to the council or the applicants or their agents that it was false. ”
i) that a factual error in a certificate under section 27 of the Town and Country Planning Act 1971 might be no more than an irregularity that did not go to the jurisdiction of the planning authority to entertain the application for planning permission notwithstanding that the provisions included the words “shall not entertain”;
ii) it rejected a submission that a factual error that was not so gross as to make the certificate no certificate at all was necessarily a mere irregularity in respect of which an applicant was not entitled to relief;
iii) that the defects in the certificate had been sufficient to entitle the court to strike down the subsequent grant of outline planning permission in certain circumstances, but that it was not a complete nullity and the matter was one for the discretion of the court;
iv) that since throughout the period between the grant of outline planning permission and the approval of reserved matters the applicant had not objected to the outline planning permission and the Secretary of State had known of the position with regard to article 11 for a long time and not sought relief and since the scheme approved did not involve development of the land owned by the unidentified person it was too late, at any rate at the suit of the applicant, to quash the grant of outline planning permission and thereby the approval of reserved matters.
i) That, in this instance, there is no allegation of dishonesty against his client nor any allegation of bad faith.
ii) Although Mr and Mrs Pridmore suggest that they were provided with inadequate time within which to consider an objection, which they would have advanced to the amended plans in connection with the availability of turning space, in truth they had had sufficient time to respond. He submitted that they had effectively been engaged in the planning process from an early stage. They had viewed the revised drawings.
iii) That, although the procedural irregularity vis-a-vis the Pridmores as owners could not be corrected, the overlap between their status as owners and their status as a neighbour meant that they had been involved in the consultation process. They had made representations and they had been considered.
iv) That the decision should not be quashed unless at least there was a possibility of a different outcome had the regulatory breach not occurred.
v) The Council had acted quite properly in bringing the revised drawings to the Pridmores' attention and, although they had not received 2l days for response, they had received an adequate period of time which was reasonable.
vi) He submitted that the Pridmores had raised their complaint very late in these proceedings. They did not request further time at either consultation stage. He submitted that the case for prejudice which they are now seeking to make out had only been raised at a late stage in these proceedings. He made no submission in connection with the conduct of Mr Docking or his agent.
The Highway Authority
Failure to have regard to material considerations relevant to highway access
Misleading guidance on tandem development
Misunderstanding of PPG3
“… tandem development is already present in the locality and it may be difficult in principle especially in view of the present requirement to increase densities in existing urban areas, to refuse a new dwelling in this position”.
It is submitted that it was wrong to suggest that national planning policy (PPG3) “required” an increase in “densities”. Further it was submitted that the suggestion amounted to advice that the policies in the adopted development plan, which was resistant to tandem development, had been superceded.
In my judgment the submission ignores the impact of the next paragraph of the report to the following effect:
“Although the proposed dwelling is located in a backland position, it is considered that it is an acceptable form of development on account of the design which is single storey, low impact and has no window openings above the ground floor that are likely to overlook neighbouring properties. The proposed dwelling would be within a plot smaller than some in the local area but very similar to those in Ilynton Drive and Juniper Drive”.
This paragraph follows the criteria set out by the adopted development plan. Had this paragraph followed the opening words of the previous paragraph instead of the reference to “… the present requirement to increase densities”, the position would have been clearer.
I am satisfied that, in the context of the report, it was a form of shorthand to refer to national policy as a “requirement”. It should be remembered that national policy does impose some procedures to be followed, for example, a search sequence and maximisation of previously developed land and the more efficient use of land. In a loose sense, these are goals which the local planning authority have to have in mind and they are, by their nature, going to have the consequence, when applied, of increasing density in urban areas.
I regard the criticism of the report to be more as to form than substance.
MR JUSTICE NEWMAN: For the reasons given in the judgment which is now handed down, the grant of planning permission in this case must be quashed. Yes, Mr Kolinsky?
MR KOLINSKY: I am grateful to my Lord. My Lord, so far as relief is concerned, my Lord has already indicated in the judgment the appropriate order is to quash the relevant planning permission and I do not seek any further relief. On the question of costs, I seek an order for costs. My understanding of the position regarding my learned friend's position is that it is common ground that there should be an order for costs. It is common ground that the ultimate amount of that order for costs should be determined by detailed assessment. The only issue between us is the amount of an interim payment that it would be appropriate to award at this stage on account of costs.
MR JUSTICE NEWMAN: It being a one-day case, is there not an assessment from --
MR KOLINSKY: My Lord, it is a matter of discretion as to what the appropriate approach is. It was tried in one day. It is therefore capable of being assessed by summary assessment. The schedules of both sides are on the large side, my Lord.
MR JUSTICE NEWMAN: Have I got them?
MR PICKLES: I was just asking that.
MR JUSTICE NEWMAN: I cannot remember whether I had them. Would you not rather have a summary assessment?
MR KOLINSKY: My Lord, there are reasons which has led both sides to think that a detailed assessment may be appropriate. One is the size of both schedules and the other is that some of the time reflects matters such as attempts to reach an accommodation between the parties, under the understanding of which may well take more time that it is appropriate to afford in this forum. So I think both parties had arrived at the position that a detailed assessment would be the appropriate mechanism for resolving the actual full amount. That is our schedule, is it, My Lord?
MR JUSTICE NEWMAN: Your costs are twice as much.
MR KOLINSKY: My Lord, yes, although that is reflected partly in the difference in hourly charging rates --
MR JUSTICE NEWMAN: I have not had a chance to look at the make-up.
MR KOLINSKY: -- my Lord, perhaps also partly in terms of the relevant expertise of both sides. The order I would seek from my Lord today is that there be an interim payment on account of the final assessment of costs in the amount of the defendant's schedule, and that it be a matter for detailed assessment or an agreement as to whether there is any further balance to be paid.
MR JUSTICE NEWMAN: What is the position in relation to the Dodds? They were not represented.
MR KOLINSKY: They were. I was instructed on behalf of all claimants.
MR JUSTICE NEWMAN: I see, you were instructed on behalf of all claimants.
MR KOLINSKY: My Lord, yes.
MR JUSTICE NEWMAN: There was no particular argument advanced so far as they were concerned.
MR KOLINSKY: No, my Lord, the arguments were common, effectively.
MR JUSTICE NEWMAN: Has their presence in the case added to the costs at all?
MR KOLINSKY: My Lord, no. My Lord, other than that it has added to my solicitor's costs in the sense of liaising with more than one claimant.
MR JUSTICE NEWMAN: That may be an issue. I suppose that might be a contentious matter.
MR KOLINSKY: I would respectfully suggest that that is a matter that would be appropriate to resolve on a detailed assessment.
MR JUSTICE NEWMAN: It might be a matter of principle which the Master might take the view was better done by the court.
MR KOLINSKY: My Lord, my primary submission would be that their presence has not added materially to the overall costs.
MR JUSTICE NEWMAN: No, I can understand their presence has not added to the costs, subject to hearing Mr Pickles, of the defendant, but on the other hand, if you tell me your bill of costs some way reflects the added element of having two other claimants, then that is a relevant matter.
MR KOLINSKY: My Lord, I am instructed that it probably has added in a relatively marginal way to the overall costs, and that the likely head there would be attendance on clients. It may be appropriate for my Lord to give an indication as to the approach to be adopted on that.
MR JUSTICE NEWMAN: Your solicitor did not take witness statements from them?
MR KOLINSKY: My Lord, there were witness statements put in in relation -- my Lord may recall all of the claimants put in witness statements, although they were all relevant to the overall factual chronology which, my Lord, I would respectfully suggest is a matter that is sound in the ultimate judgment.
MR JUSTICE NEWMAN: All right, I will hear what Mr Pickles says about it. But the figure you want anyway is an interim payment of the amount which appears on their schedule?
MR KOLINSKY: Rounded down to £18,000, my Lord.
MR JUSTICE NEWMAN: All right. Mr Pickles?
MR PICKLES: May it please your Lordship, in relation to costs, my learned friend's summary of the position in broad outline is correct. In terms of the quantum of an interim payment, I say simply this: (1) the context of all of this is that the claimant's claim for costs is enormous; (2) it is enormously larger than the defendant's; and (3) I think it is also respectfully relevant to bear in mind that the application has actually proceeded on -- I am not sure whether it was one and a half or two of six grounds. We started out in these proceedings on the basis of six grounds, two were jettisoned at the skeletal stage and at least two of them failed before your Lordship. Fourthly, I do not think I would get 100 per cent recovery of my costs, as much as I would have liked to, I do not think I could have done. So I respectfully submit that, in that context, your Lordship should make a relatively modest order. The figure I put before your Lordship is £12,000 -- £12,000 to be paid within 28 days. In terms of the split between the claimants, I respectfully suggest that your Lordship should indicate that the Dodds' participation in these proceedings has been marginal.
MR JUSTICE NEWMAN: So you say all I should do is make an interim payment of £12,000 and indicate for the benefit of the full assessment that the Dodds' participation has been marginal?
MR PICKLES: Yes. It would also help the Master in taxation if your Lordship were to confirm what I have just said, which is to say that this application has succeeded on --
MR JUSTICE NEWMAN: That is why I repeated what you were asking me because that is asking me to formally engage in an exercise of not awarding the claimants all their costs, but only ordering that they should be entitled to some of their costs because they have raised issues upon which they have failed. That is a substantive application to make in connection with costs. It requires specific consideration and so forth.
MR PICKLES: I have to say I have not given that specific consideration. But the issue of the extent to which, and the basis upon which, the claim has succeeded will certainly be part of the argument before the Master. I respectfully reinforce the argument that your Lordship should make a modest order. If it is necessary on my feet -- if your Lordship thinks it right for me to submit that your Lordship should make only a partial order, then I respectfully, as I stand here, should do that. If your Lordship takes the point that this application has succeeded on one and a half of six grounds -- your Lordship knows perfectly well that six dropped away -- your Lordship has never had to fuss about two of the grounds and dismissed two of them, and I do respectfully place before your Lordship the alternative that your Lordship should perhaps entertain that.
MR JUSTICE NEWMAN: I do not think that you can leave it for the Master. If you want to make a submission, you must make a submission.
MR PICKLES: Well, I do.
MR JUSTICE NEWMAN: All right.
MR PICKLES: Do I need to elaborate it?
MR JUSTICE NEWMAN: I do not think you do. It does not bear much elaboration.
MR PICKLES: Does your Lordship accept, with respect, the factual position as I describe it?
MR JUSTICE NEWMAN: There were six issues, two dropped out by the time it reached me and then so far as the judgment was concerned, you are right that two of the grounds which were proceeded with did not find favour with me.
MR PICKLES: That is right. I respectfully, on reflection, should be protected in terms of my exposure to costs in respect of those matters which have been withdrawn or failed. I submit that there should be an order reflecting that.
MR JUSTICE NEWMAN: Thank you, very much. Yes, Mr Kolinsky, what would you like to say?
MR KOLINSKY: My Lord, in the course of that exchange, my understanding of my learned friend's position, and I suspect indeed my learned friend's position has changed radically, I had not understood that there was resistance to the principle of the full order for costs. I do strongly submit that plainly it is matter of discretion, but I do strongly submit that the appropriate order would be the totality of the costs, to be assessed by detailed assessment. I say that for the essential reason that a large part of the hearing and the evidence have been directed at the chronology of what has happened and the consequences of the procedural defects on why it was perceived to be unfair. The grounds that have fallen by the wayside, taken in turn, the first one was a reasons point, which was rightly abandoned immediately on receipt of my learned friend's summary grounds of resistance, when he pointed to the transitional provisions. So the costs of that are marginal in the extreme. Then there were three grounds, each of which effectively took issue with the office's report; on its face, none of which required by definition a detailed evidential response and none of which received a detailed evidential response. The detail of the evidence put in by all sides was the chronology and the specific fact-intensive issues relating to highways and the (inaudible) which took a large part of the hearing before my Lord.
Now, I accept that, before my Lord, I did take time to develop essentially legal submissions in relation to, if you like, the policy of those challenges, but, my Lord, we did manage efficiently to dispose of the hearing in one day. I respectfully submit that it is unrealistic to say that the actual length of the hearing would have been materially less were we simply dealing with the factually complex issues of the consequences of the procedural breaches. So looking at the matter in the round, my Lord, I would respectfully submit that there is no reason to go away from the ordinary rule that costs ought to follow the ultimate result. My Lord, unless I can assist further, those are my submissions.
MR JUSTICE NEWMAN: Thank you, very much.
As to costs, there are two schedules which would, in the normal course, this being a one-day case, have enabled the court to proceed to a summary assessment. But there is a huge margin between the costs claimed by the successful claimants and the defendant's costs. In round terms the claimants are asking for £36,000; the defendant's costs come out at a little short of £19,000. Both sides are, in effect, content to move to a detailed assessment in order for these issues to be resolved, and the court is not minded to therefore carry out a summary assessment, which would require considerable breaking down of the figures in investigation detail which simply is not available to the court today, either by way of information or by way of time.
The next matter so far as costs is concerned is that Mr Pickles submits that this is a case for a partial order being made in favour of the claimants rather than a full order. He says that because there were originally six grounds, but two were abandoned by the time the matter had come before this court. He says, further, that it is plain from the judgment that on two of the issues which were proceeded with in relation to the contents of the office's report, the claim failed. That is manifest from the terms of the judgment. Despite the failure on those two issues, in my judgment this does not come within the margins of those cases where it would be right to treat it as an issue case. The principal reason for that is that, if one pays regard to the nature and extent of the issues upon which the claimant ultimately failed, they are, in terms of their compass, small. They related to the arguments based upon the office's report and some legal argument by reference to, for example, PPG3.
The substance of this case is, as it appears from the judgment, one which required close consideration of the sequence of events and the facts and the various procedural irregularities. The claimants have won on the substance of the case and I see no cause to deprive them of all their costs, such as they may be entitled to after a full assessment.
The next question is how much, therefore, should the court order the defendant to pay by way of interim order. Mr Kolinsky, for the claimants, asked for £18,000, namely the amount of the rounded down figure which represents the costs of the defendant. Mr Pickles urges caution and suggests a figure of £12,000. I do not think that it would be right to take the figure of £18,000, even as it is rounded down from £18,700-odd, as a touchstone for the interim payment. It seems to me that there is reason to give rather more than the £12,000, but not as much as Mr Kolinsky asks for. In the circumstances, the appropriate figure, in my judgment, by way of an interim payment is £14,000.
Mr Pickles, thank you very much for your skeleton on the matters you wanted to raise in support of an application. I have read them and I am sure Mr Kolinsky has seen them. Do you want to elaborate on them?
MR PICKLES: No.
MR JUSTICE NEWMAN: Thank you, very much. Mr Kolinsky, what do you say about this?
MR KOLINSKY: My Lord, I say in broad response that, notwithstanding my learned friend's grounds, the correct analysis as to what has happened here is that my Lord has rightly identified, in paragraph 22 of the judgment, a catalogue of procedural errors. I do not think it is or it can be seriously suggested that any of those procedural errors did not occur. So on the basis of Main, we are plainly into the territory of the exercise of discretion, and I would respectfully say that the point at which the case turned against the defendant was the exercise of that discretion. Notwithstanding my learned friend's careful drafting, I would respectfully submit as a matter of broad approach that he has been unable to identify any error of basic approach. What he complains about rather are matters of emphasis and judgment in the exercise of discretion which, in my respectfully submission, self-evidently is not a basis for identifying an error of law to entertain the Court of Appeal. My Lord, I can, if it would assist, deal with each of the grounds in terms.
MR JUSTICE NEWMAN: I do not think that is appropriate.
MR PICKLES: Can I just say, to a large extent your Lordship is, by virtue of Main, thrust into an area of discretion, but certainly ground 1 does not relate to discretion at all. Ground 1 relates to your Lordship's findings in relation to whether or not, as a matter of law, the LPA were correct in terms of whether or not any error was made. That is not a matter of discretion, with respect. Neither is the last ground which is about whether or not there was evidence before your Lordship to support your Lordship's finding in relation to the highways points. Those do not, with respect, relate to the way in which your Lordship should exercise his discretion. Neither -- I go to the meat in the sandwich -- the middle ground, which relates to your Lordship's conclusion that the period for consideration of the amended drawings (inaudible), but that is not a matter of discretion, that is a pure matter of law, with respect, which we take issue with in terms of the notice that we have produced. I take the point that, although your Lordship on behalf of the LPA -- I state the point that that had been taken within the scope of the exercise of your Lordship's discretion, that these are not all points that relate to discretion.
MR JUSTICE NEWMAN: Just help me on one thing which is in my mind. You are perfectly entitled to submit that, notwithstanding that it is an exercise of discretion, you nevertheless want to take the exercise of discretion on appeal. You are perfectly entitled to say that. But one thing that does appear curious is that if indeed it is truly to be regarded as a discretionary exercise, there is no point of principle involved. We are in a case where, on the analysis in the judgment, what has happened has happened because your clients were, one might say, overzealous in attempting to have this matter resolved within 8 weeks. I find the application on behalf of the Council in a case where, as I say, it is difficult to discern a point of principle as much in issue as opposed to a challenge to an exercise of discretion, which is proposed -- to hear the application when one would have thought the sensible way forward was, if there is an application to be proceeded with, the sooner it was got on with the better and it could be dealt with within 8 weeks if the interested party was to make a further application, rather than the delay which is going to be consequential upon an appeal process. But if you have nothing to say to that, then by all means you do not feel you have to, but it is a point which is in my mind.
MR PICKLES: With respect, may I make two points in response to what your Lordship just said. The first is this: of course Mr Docking could have taken Mrs Wallace's indication and made another planning application, but he did not. (inaudible) in that planning application for the LPA, which they as a statutory authority have to deal with, and so it may be that the third party could have rescued the LPA (inaudible) engage in this litigation, but it did not. He was entitled not to, and with respect here we are wrestling with the consequences of that, but that does not rebound on the LPA because at the end of the day Mrs Wallace asked him to make that application. We cannot take the horse to the water and make it drink.
MR JUSTICE NEWMAN: My judgment takes a different view, but I hear what you say.
MR PICKLES: The second point in relation to your Lordship's exercise of discretion, it is my point in relation -- and of course I respectfully acknowledge the LPA may take the point of discretion to the Court of Appeal -- the point in relation to discretion is that, in relation to the penultimate ground, the basis upon which your Lordship has exercised that discretion does not reflect what is the main purpose of the notification and certification process. I say that with all due humility. What your Lordship has done is exercise the discretion primarily by reference to the culpability of a third party, which, with respect, has got nothing to do --
MR JUSTICE NEWMAN: I have your submissions.
MR PICKLES: I apologise for going on about it.
MR JUSTICE NEWMAN: Not at all, I am very grateful to you.
Despite the careful way in which Mr Pickles has drafted his application for permission to appeal, I am satisfied that this is essentially a discretionary case. So far as the grounds appear in writing, they reflect a difference between Mr Kolinsky and Mr Pickles and, of course, to a certain extent, the court as to whether the proper interpretation of the judgment is as is reflected by Mr Pickles. I take the view that this being a discretionary matter, and also I am bound to observe that it being a discretionary matter raising, in my judgment, no point of principle, it seems to me that it is not in the best interests of any of the parties that this matter should be delayed. There is now a third party or interested party who, no doubt, wishes to pursue a planning application. If he wishes to do so, he can do so, complying with the law in the terms of the judgment, and if he does so, there is every expectation it will be dealt with within the 8-week period, which the defendant attempted to apply to and did apply to this particular application which I have quashed.
In all the circumstances, permission to appeal is refused.
MR PICKLES: Your Lordship, there are three remaining items to tie up. Number 1 is, would your Lordship in relation to the issue of costs give an indication to the Master that the costs in relation to the Dodds were, relatively speaking, modest as a proportion of the whole. I do not think that appears in your Lordship's judgment.
MR JUSTICE NEWMAN: I can certainly record, and I do not think it is contentious, that the Dodds were represented by Mr Kolinsky, that Mr Kolinsky to my recollection made no submissions which involved reliance upon the position of the Dodds, and as a result, the role that the Dodds played in the case is almost imperceptible so far as this court's recollection is concerned.
MR PICKLES: My Lord, there are two other points which can be rolled into one. 21 days is a figure that lingers in this case. Would your Lordship be kind enough to extend the period for my making an application in relation to the appeal to 21 days? The reason for that is to enable the relevant committee to consider whether or not to pursue the appeal, and would your Lordship also roll in with that a 21-day period for payment of the interim order?
MR KOLINSKY: My Lord, the first is not resisted; it plainly is sensible for the Council to take stock, for the reasons my Lord indicated when refusing permission. The second one is resisted in the sense that my clients are individuals, they are not in receipt of any public funding and they have been financially strained by the proceedings. They have been successful, and in the absence of a good reason why 21 days rather than the usual 14 days should be allowed for the interim payment, I would respectfully submit that the normal order ought to apply.
MR JUSTICE NEWMAN: I extend the time for consideration as to whether you go to the Court of Appeal to 21 days, but the interim payment must be paid within 14 days.