England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th July 2005

Mr Justice Richards :

1. On 24 November 2004 the defendant council granted planning permission for five interrelated developments in Leigh, a town located in the borough of Wigan in Greater Manchester. In application order, they relate to:

i) the construction of 2 office buildings with car parking on land off Atherleigh Way (application number A/03/58531);

ii) the construction of 44 residential units with open space at Madeley Park (application number A/03/58532);

iii) the construction of a bulky (non-food) goods retail warehouse with associated car parking and infrastructure and a children's play area at Leigh East (application number A/03/58533);

iv) the construction of a 10,000 seat stadium, a replacement Wigan and Leigh college, a conference and business centre, residential development including student accommodation, and a range of commercial, leisure and retail development with associated car parking and infrastructure at Marshall Street (application number A/03/58535); and

v) the laying out of sports pitches and associated car parking at Howe Bridge (application number A/03/59209).

2. The development at (iv) is described as the Leigh Sports Village and is at the heart of the proposals. It is a major development into which significant amounts of public and private resources have already been invested. The site is allocated under Policy C1D of the deposit draft of the replacement Wigan Unitary Development Plan for a comprehensive sports-led mixed use development. The reasoned justification to the policy refers to the existing outdated sports facilities in Leigh, for both professional and amateur clubs, and points to a considerable potential demand for a substantial new sports development providing modern equivalent facilities for all of those clubs. The planning statement submitted in support of the application described the proposal as a "high quality flagship development on a major gateway into Leigh Town Centre that would assist in improving the image of Leigh by reaffirming its status locally as a major centre of sport and education" and that would "provide access to a range of sporting opportunities and facilities within an area of quantitative deficiency".
3. The wider context is that Leigh is a town of 45,000 people which is in need of regeneration. That is one of the underlying themes of the development plan, both adopted and emerging. A key theme of the regeneration initiative within the wards closest to the Leigh Sports Village site is that of achieving regeneration through sport. It is seen as a critical mechanism for attacking disaffection amongst young people.
4. The application relating to Leigh Sports Village was submitted to the council for planning permission on the specific basis that it was financially unviable without each of the development components contained in the other four applications. There is in fact a functional and financial relationship between them, in that (i) facilities will in some cases be lost, but replacement facilities will be provided at another site, and (ii) financial cross-subsidy is required to preserve the viability of the scheme and to deliver the regeneration benefits it seeks to bring.
5. On 16 April 2004 the five applications were presented to the council's planning committee with six reports by officers, namely an "overarching report" considering all the applications, and separate reports relating to each of the five applications individually. The committee also had a large number of other documents before it, including the applicant's detailed planning statement, transport assessment and environmental impact assessment ("EIA"), and the numerous representations made on the proposals. The committee resolved to grant planning permission for each of the proposed developments, subject to the completion of section 106 agreements (to secure the phasing and delivery of the various elements of the development, and in particular to ensure that the recreational elements were built and ready for use before the commercial elements) and a decision by the First Secretary of State not to call in the applications for his own determination.
6. The preconditions to the grant of planning permission were satisfied and the respective formal grants of planning permission were duly issued on 24 November 2004.
7. The claimant challenges all the planning permissions except for that relating to sports pitches at Howe Bridge. His complaint arises out of the loss of open space that he uses for recreational purposes. As an objector, he came late onto the scene. He did not object to the allocation of the Leigh Sports Village site for a sports-led mixed use development under policy C1D of the deposit draft replacement UDP. He did not object at the time to any of the five applications for planning permission. But, as an unemployed person affected by the proposals, he obtained public funding to mount a last minute challenge to them. His claim for judicial review was filed on 18 February 2005.
8. The claim is resisted both by the council and by the developer, Greenbank Partnership Limited, which appears as an interested party.

The officers' reports

9. The officers' reports to the planning committee amounted in total to a 263 page document. The overarching report itself was 86 pages long. It gave an indication of the interrelationship between the five proposals, the planning policy considerations that applied, and the range of other factors against which the proposals had been assessed. It summarised the conclusions reached on the planning merits of the five applications but stated that it should be read in association with the reports prepared in respect of each of the individual applications, which were attached as appendices to the overarching report.
10. I shall not attempt to summarise the reports themselves, which are impressive documents giving extensive consideration to a wide range of issues. The areas of complaint raised in these proceedings are very narrow and I will look at relevant passages when considering the issues.
11. The overarching report contained advice as to the approach that the committee should take to the requirements of planning policy:

"10.1 The interpretation of whether a proposal is compliant with the requirements of national, regional and local planning policy is a matter that calls for a well reasoned and balanced judgment to be reached. There are a number of individual policies that apply to this series of planning applications. It is inevitable when dealing with large-scale proposals that have a number of potential impacts, that there will be examples of policies that pull in different directions.

10.2 For the proposals to be in compliance with the provisions of the development plan, it is not necessary that they accord with each and every policy. The issue is whether the proposals are in accordance with the provisions of the development plan as a whole. That is, whether they assist in delivering the strategy of the Plan."

No complaint is made about that advice, which is consistent with the observations of Lord Clyde in City of Edinburgh Council v. Secretary of State for Scotland [1997] 1 WLR 1447 at 1459E-F; see also R (Cummins) v. London Borough of Camden [2001] EWHC Admin 1116, at paras 161-165.

12. In its summary of individual applications, the overarching report dealt first with the Leigh Sports Village proposal (application number A/03/58535). The conclusion reached was:

"12.1 The proposal will contribute significantly to the regeneration of Leigh. It will provide a flagship development, and improve facilities for existing professional and amateur football, rugby and athletics clubs within the area. It will contribute strongly to increasing participation in sport, and promote more healthy lifestyles. The scheme will deliver first class educational facilities within a vibrant Campus that would be attractive to encouraging people to undertake further education. It will have substantial employment benefits and can be brought forward without unacceptable harm to the town centre, or local amenity. With appropriate safeguards, the impacts of traffic can be accommodated safely on the local road network and the scheme will assist in promoting public transport and park and ride opportunities.

12.2 The proposal accords in a material way with the provisions of the Development Plan and emerging Planning Policy Framework. The proposal could result in some delayed investment in the town centre, and on brownfield housing sites. However, these impacts would not be of such significance as to outweigh the overall benefits of the scheme.

12.3 The size of the retail facilities on site are not of such a a scale that they need to be referred to the Secretary of State under the terms of the shopping direction, and the proposal complies with the provisions of the Development Plan as a whole. Consequently, it is recommended that planning permission be granted, subject to planning conditions and legal agreements as set out in the main report …."

13. The overarching report then considered the Leigh East retail warehouse proposal (application number A/03/58533). It concluded that it was in conflict with the thrust of the existing development plan policies which favoured the location of retail development of this nature in town centres, and that it would therefore have to be referred to the Secretary of State as a departure from the development plan, but that approval should nevertheless be given:

"13.29 The proposal will contribute significantly to meeting the retail needs of Leigh and arresting trade leakage from the catchment area. To this end, it will improve qualitative choice, and assist in promoting more efficient and sustainable travel patterns. The proposal is consistent with national, regional and emerging planning policy and would be an acceptable development in its own right. The fact that it will also assist in delivering the Leigh Sports Village proposal is a significant and material planning benefit that the proposal will bring. As it will provide funding to assist in delivering facilities on the main site, the development has wider benefit than the qualitative retail offer that it makes. It will also help to provide a flagship development, improving facilities for existing professional and amateur football, rugby and athletic clubs within the area. It will thereby contribute strongly to increasing participation in sport, and promote more healthy lifestyles. It also has a role in assisting the delivery of first class educational facilities within a vibrant campus complex. Consequently, it will have educational benefits. Lastly, in addition to the direct employment that will be provided on site, it will also help to deliver a wider range of employment opportunities on the Leigh Sports Village site.

13.30 Whilst the application does not accord with the Development Plan, this is as a consequence of the Plan being outdated and not fully reflecting current retail policy. The proposal accords in a material way with the requirements of national, regional and emerging planning policy and is therefore considered to be acceptable.

13.31 Consequently, it is recommended that planning permission be granted subject to planning conditions and legal agreements as set out in the main report subject to the application first being referred to the Secretary of State as a departure from the Development Plan …."

14. The office development at Atherleigh Way (application number A/03/58531) was also considered to involve a departure from the development plan, but to merit the grant of permission by virtue of its link with the Leigh Sports Village proposal:

"14.29 The office development is contrary to the main thrust of national policy set out within PPG6, the requirements of the approved Development Plan, and the general strategy of the emerging Wigan Unitary Development Plan Replacement, Second Deposit Draft. Consequently, if the offices were a stand alone development they would be unlikely to be acceptable in planning terms. They would fail the sequential test, and could have some potentially harmful consequences to the town centre by delaying investment. However, the development has to be seen as an integral part of a large package that offers many benefits. The planning policy concerns raised above do therefore have to be set against the context of these benefits. If the linkage between the office and the main Leigh Sports Village site is accepted the benefits offered by the larger package would outweigh the planning policy concerns I have highlighted.

14.30 The Leigh Sports Village proposal will contribute significantly to the regeneration of Leigh ….

14.31 The applicants have made it clear, that without the commercial components of development none of these benefits will be realised. The Council's emerging planning strategy has recognised the critical role of enabling development on this site, and it is for this reason that the policy framework would positively support a small scale office development, provided there was financial justification for it.

14.32 … It is clear that the development is vital to enabling the Leigh Sports Village proposal as a whole to proceed.

14.33 There will be dis-benefits arising from the office development. However, I consider that the significant benefits that would be achieved as a consequence of the Leigh Sports Village complex as a whole are of such significance as to outweigh these.

14.34 Consequently, it is recommended that planning permission be granted subject to planning conditions and legal agreements as set out in the main report, subject to the application first being referred to the Secretary of State as a departure from the Development Plan …."

15. The residential development at Madeley Park (application number A/03/58532) was considered to be in compliance with the development plan, in part because of the replacement facilities at the Leigh Sports Village and Howe Bridge sites for the existing athletics track and football pitch at the Madeley Park site. The conclusion was:

"15.19 Assessment of the proposal against the policies of the Development Plan, national, Regional and emerging local policies, and other material considerations, including the views of third parties, demonstrate the proposal to be acceptable.

15.20 As the development will also provide funding to assist in delivering facilities on the main Leigh Sports Village site, the development has wider benefits than the contribution it makes to improving the range and choice of housing within the Borough …. Consequently, it will have educational benefits.

15.21 The proposal accords in a material way with the requirements of National, Regional and emerging planning policy, and will help to bring forward important planning benefits. It is therefore considered that the proposal is acceptable. Consequently it is recommended that planning permission be granted subject to planning conditions and legal agreements as set out in the main report …."

16. The proposal for the laying out of sports pitches at Howe Bridge (application number A/03/59209) was supported for the following reasons:

"15.35 Assessment of the proposal against the policies of the Development Plan, National, Regional, and emerging local policies, and other material considerations, including the views of third parties, demonstrate the proposal to be acceptable.

15.36 The proposal will contribute to improving both the quantitative and qualitative supply of sport and recreational facilities available locally, and assists in achieving wider objectives to encourage increased participation in sports as a means of promoting more healthy lifestyles. The proposal makes efficient use of investment that has already been made in sporting facilities within this area, and can thereby be more easily assimilated into the local area and it is not considered the proposals will unacceptably alter the current impact of the use. Consequently, it is recommended that planning permission be granted subject to planning conditions and legal agreements as set out in the main report …."

17. The planning committee's decision to grant the planning permissions can be taken to have been based on the reasoning in the officers' reports.

Issues

18. The first issue is that of delay. Both the council and the developer contend that there was a failure to bring the claim "promptly" as required by the rules and that permission should be refused on that ground alone. It was in order to preserve that argument that Collins J directed that the case be listed for a rolled up hearing, with the application for permission to be followed immediately by the substantive hearing if permission was granted. In the event I heard full argument and reserved all decisions to this judgment.
19. Four substantive grounds are pursued by the claimant:

i) Ground 1 alleges a failure to have regard to relevant development plan policies and to national guidance in PPG17 concerning the loss of informal open space. It relates to the main Leigh Sports Village site and the adjoining office development at Atherleigh Way.

ii) Ground 2 alleges a failure to have regard to national guidance in PPG17 concerning the loss of existing sports pitches. It relates mainly to the suitability of the proposed facilities at Howe Bridge as a replacement for the sports pitches that will be lost at the Leigh Sports Village.

iii) Ground 3 is linked to ground 1 and alleges a failure to give reasons for not following the development plan policies and national guidance relied on in ground 1.

iv) Ground 4 alleges that the council erred in law in determining that the retail warehouse and residential developments at Leigh East and Madeley Park were "enabling development" such that it was entitled to take into account the financial link with the Leigh Sports Village development and the benefits arising from that development.

Delay

20. The relevant chronology is as follows. On 16 April 2004 the planning committee passed its resolution to grant the planning permissions. On 30 June the council was notified that the planning applications would not be called in for decision by the Secretary of State. On 18 October the claimant's solicitors sent the council a pre-action protocol letter, containing substantially the same points as are advanced in these proceedings. On 8 November the council replied. On 24 November, after completion of the section 106 agreement, the planning permissions were formally granted and issued. On 1 December the council wrote to the claimant's solicitors to notify them of the grant of planning permissions. On 7 January 2005 the claimant's solicitors lodged an application for Legal Services Commission ("LSC") funding. On 1 February the LSC decided in principle to fund the claim, subject to a contribution to costs by the local community. On 7 February that decision was notified to the claimant's solicitors. On 10 February a cheque meeting the LSC contribution requirement was issued. On 11 February the LSC's funding certificate was issued. On 15 February the claimant's solicitors were notified that it had been issued. On 18 February they filed the claim for judicial review.
21. The requirement in CPR 54.5(1) is that the claim form must be filed (a) promptly and (b) in any event not later than 3 months after the grounds to make the claim first arose.
22. On the basis of R (Burkett) v. Hammersmith & Fulham LBC [2002] 1 WLR 1593 it is common ground that time did not begin to run against the claimant until the formal grant of planning permission on 24 November. The claim was therefore within, though only just within, the 3 month outer time limit.
23. The case for the council and the developer is that there was nonetheless a failure to file the claim "promptly" as required. It is submitted that it was open to the claimant to file the claim before the actual grant of the planning permissions (though there was no requirement to do so), and that the contents of the pre-action protocol letter of 18 October 2004 show that the claimant was in a state of legal readiness to file it at that time. Accordingly, once the claimant was notified of the actual grant of planning permissions, he should have brought the proceedings within a very short time rather than waiting for almost three months. In so far as LSC funding was required before the claim could be filed, it should have been applied for immediately and there was no excuse for waiting until 7 January 2005.
24. It is submitted further that the delay has caused prejudice to the council and the developer and that the court should therefore decline to extend time. This is a multi-partner project involving funding from many sources. Some of the grant monies obtained have conditions attached relating to the timescale for delivering the project, and concern is expressed more generally about the continued availability of funding if there is any substantial delay. The council has not pointed to any specific funding that would be lost, but bases its case on an increased uncertainty as to whether funding would be available. It is also said that works on the new college building at the Leigh Sports Village site are due to start in September 2005 and that delay would be damaging to the college.
25. The developer's evidence is that it has committed through the development agreement with the council to build the whole of the public sector facilities within the agreed programmes set out in the section 106 agreement; it has secured a security bond to the sum of £20 million for the purpose of underwriting the cost of completing the public sector works; contracts are in the process of being let on the basis of a September 2005 commencement date; and every month of delay, on a total development building cost of £29 million and inflation at 4% per annum, will cost £230,000.
26. In response, on the question of promptness, Mr White points to the steps that have to be taken in order to apply for LSC funding. There have to be a written opinion, a draft claim and draft witness statement. A lot of work is done up front in order to enable the claimant to move quickly once the LSC has made a favourable determination. There also has to be an investigation of the capacity of the claimant and the local community to fund the claim. In all the circumstances, although it is possible that the claim could have been filed a few days earlier than it was, it is submitted that there is a reasonable explanation for the time taken and that the claimant should be found to have complied with the requirement of promptness.
27. If there was a failure to apply promptly, Mr White asks the court to exercise its discretion to extend time. It has not been shown that delay made any difference as regards funding for the development. There is no evidence as to the funding conditions or to substantiate the concerns that funding may be imperilled. From the date of the pre-action protocol letter the council and the developer knew that there was a risk of challenge. If monies were expended after that date, they were expended in knowledge of the risk.
28. With a degree of hesitation, I have concluded that I should not rule out this claim on the ground of delay. It was brought within the 3 month outer time limit. Whilst it is true that there remains in the rules a separate requirement as to promptness, it seems to me that a degree of caution is called for in the application of that requirement, especially given the doubts expressed by Lord Steyn in Burkett as to the compatibility of the requirement with the European Convention on Human Rights. In any event, however, I am not persuaded that I should find a failure to apply promptly or that, if there was such a failure, I should decline to exercise my discretion to extend time.
29. The pre-action protocol letter cuts both ways. It supports the argument that the claimant's case was in sufficiently good order to enable a claim to be lodged rapidly after the formal grant of the planning permissions; but it also meant that the council and the developer were aware, before the planning permissions were granted, that they were likely to be subject to legal challenge.
30. The real question, as I see it, is whether the application for LSC funding should have been made substantially earlier than it was. Bearing in mind the steps that have to be taken before such an application can be made, it seems to me that it would have been reasonable for the claimant to take until close to Christmas 2004 before making the application, notwithstanding the degree of preparedness shown by the pre-action protocol letter. In the event the application was made just after the Christmas break, in early January 2005. There was perhaps some delay, but it is not such as in my view ought to debar the claimant from bringing the proceedings. And once the application for LSC funding was made, things moved as quickly as they could reasonably be expected to move.
31. Furthermore I am far from satisfied that any delay in bringing the claim caused serious prejudice to the council or the developer. The risk of loss of funding was advanced at a very high level of generality. To the extent that the developer assumed financial liabilities, it did so in the knowledge that a legal challenge was likely. The fact that a successful challenge would cause delay, with adverse financial consequences for the developer, would not in my view be a sufficient reason for the exercise of discretion against the claimant in the particular circumstances of the case.
32. I therefore go on to consider the substantive issues in the case.

Ground 1: loss of open space

33. The claimant's case on this ground is based largely on the development plan but also relies on PPG17 as a subsidiary aspect.
34. The relevant policies of the Wigan UDP are policies L1C and L1D. They are set out below in bold type, with the explanatory text in normal type:

"L1C - Protection of Local Open Space and Outdoor Sports Facilities

Development will not be permitted on Local Open Space and Outdoor Sports Facilities unless:

(i) Alternative provision is made of at least equivalent standard in an appropriate location with similar community benefit or;

(ii) It can be demonstrated that there is (or would be) no deficiency in open space in the area compared with the standards in L1 as a result of the development; or

(iii) The Local Open Space or Outdoor Sports Facilities can be retained by development on part of the site.

This policy protects existing Local Open Space and Outdoor Sports Facilities as defined in Policy L1.

The Council considers it important to safeguard existing areas and facilities which form an important resource to the community ….

L1D - Protection of Other Amenity Open Space

Development will not be permitted on open space of amenity value within built-up areas unless alternative provision is made of at least equivalent standard in an appropriate location with similar community benefit.

This policy refers to open space of high amenity value and community benefit within built-up areas, not included within the recreational open space defined in L1. These are open spaces which in the Council's view will need to be protected from development for as far ahead as can be foreseen. This type of open space will include:

…

iii. urban green spaces and landscape buffers which provide visual amenity and are of acknowledged local community benefit (whether or not there is public access to such land).

Protection of such sites is in accord with Government Guidance in PPG17 …."

35. As their explanatory text makes clear, the respective scope of policies L1C and L1D depends on the definitions in policy L1. The explanatory notes to policy L1 define "Local Open Space" as "land suitable for informal recreation and children's play space …". Accordingly, the active recreational aspect of open land is protected by policy L1C and the passive amenity aspect, in particular the visual aspect, is protected by policy L1D. For the claimant, Mr White made his initial submissions primarily by reference to policy L1D, but the analysis by Miss Stockley for the council and Miss Patterson QC for the developer showed that policy L1C was the more relevant policy. The position adopted by Mr White in reply was that it makes no difference which of the two policies one takes, since the position under both is materially the same. I shall therefore examine the arguments by reference to them both.
36. The Leigh Sports Village site extends to over 39 ha, of which over 20 ha consists of open space, woodland and playing fields. The site of the office development at Atherleigh Way, although separate for application purposes, in reality forms part of the same overall site.
37. There is undisputed evidence that the open areas on the site are used by the claimant and others for a variety of recreational activities. The claimant attaches particular importance to their use for dog walking. Although there are a number of defined rights of way, walking is not confined in practice to those rights of way.
38. In a report in August 2000 on a previous proposal for a sport and leisure complex on the same land ("the Xanadu report"), an inspector attached substantial weight to the free public access to, and use of, the land and found that the potential loss of existing recreational and amenity facilities was a consideration telling significantly against the proposal. The Secretary of State, in accepting the inspector's recommendation that planning permission be refused, stated that the additional recreational opportunities provided by the proposal "would be offset by the loss of informal recreation on the land by the general public resulting from the development of open areas on the site" (para 14 of his decision letter dated 20 August 2001).
39. The claimant's case is that the present proposals will have similar adverse consequences and that the committee failed to consider the issue by reference to the relevant policies. The Leigh Sports Village and office developments will result in the loss of almost all of the open areas on the site. There is to be no "alternative provision … of at least equivalent standard" within paragraph (i) of policy L1C or within policy L1D; there has been no assessment capable of demonstrating that there would be no deficiency in open space in the area, in accordance with paragraph (ii) of policy L1C; and no question arises of retention of the open space in accordance with paragraph (iii) of policy L1C. The proposal is therefore on the face of it in clear breach of the policies. In those circumstances it was essential that the committee grapple with the policies and test the applications for planning permission against them. It is clear from the officers' reports, however, that the committee did not consider them or, if they considered them, failed to understand the policies or their effect.
40. Section 7 of the overarching report summarised the environmental impact assessment ("the EIA") which had been provided by the developer and copies of which, together with supporting documents, had been provided to members of the committee. The loss of open land was clearly identified as the first factor under the heading "landscape and visual impacts" (paras 7.9-7.10).
41. Section 9 of the overarching report summarised consultations and representations. The loss of recreational land and open space was clearly identified as a ground of opposition by residents.
42. Mr White submits, however, that those references do not show that the members of the committee grappled adequately with the policy issues arising out of the loss of open land. As to that, he submits that the report begins to fall into error at section 11, where the development plan policy framework for the Leigh Sports Village proposal is considered:

"11.1 The application site is not subject to any site specific restraint policies which seek to protect the site from development, now or in the future. It is excluded from the Green Belt, defined by Policy OL2 and does not fall within the protected open land designation, defined by Policy OL3. The site is open land that falls within the urban area of the borough. As it is not subject to specific restraint policies, the expectation is that it is available to be brought forward for development within the life time of the plan. Proposals would need to accord with the overall strategy of the plan, and not offend specific policies intended to control the standard of development.

…

11.3 The plan strategy seeks to promote a range of measures to regenerate the Borough, improve its image, economy, infrastructure, environment and quality of life offer to residents. This raft of mutually supportive policies include inter alia…

11.4 The proposal provides a range of sport, recreational, leisure, community, educational and housing facilities, including special needs. These are all supported by the dominant thrust of the plan to encourage such facilities within the urban area to contribute to the wider regeneration effort of the borough. The site also includes retail development. However, this is small scale in comparison to the proposals as a whole and in part will serve facilities on the site. Provided it can be shown this would not undermine the viability and vitality of Leigh Town Centre, it is difficult to conclude that the proposals do not accord with the overall plan strategy.

11.5 In addition to the above policies which give effect to the plan strategy, there is one general policy which gives locational direction for initiatives within the vicinity of the site, two site specific housing and environmental policies, criteria based policies relating to housing and a number of whole plan policies that seek to control the quality of development.

11.6 This suite of policies include inter alia;

…

6. A range of leisure, open space, community facilities and tourism policies, including L1, L1B, L1C, L1D, L1F, L5, E5.

…

11.8 The detailed report on the application and the summary of consultation responses in section 9 confirms that none of the statutory consultees who have considered the EIA, the Transportation Impact Assessment, the Retail Impact Assessment and the planning application has identified any technical reason for withholding planning permission. The site will incorporate some general needs housing and student accommodation. It is within the urban area, well served by infrastructure and facilities and will provide housing choice. Furthermore, the Retail Impact Assessment does not demonstrate any impact that would be of a scale to undermine the viability and vitality of the town centre as a whole. The financial information confirms the proposals to be indivisible and not a candidate for disaggregation. Consequently, the proposals not only deliver the plan strategy, but satisfy the detailed requirements of development plan policy.

…

11.11 My conclusions in respect of the development plan are that the proposals as a whole accord with the provisions of the plan. The site is within the urban area. It is not subject to restraint policies. Consequently the expectation is that it would be brought forward for development within the lifetime of the plan. The planning history confirms that planning permission has been granted on the site for major urban development. This permission pre-dated the adoption of the development plan. The fact that the site is a candidate for development is confirmed by the Plan Strategy and is a matter of public record as a consequence of the planning history. Part is also allocated for development. The proposal will bring forward major regeneration within an area of deprivation and need, on a site recognised within the Plan as being suitable for development and which is supported by appropriate infrastructure.

11.12 By excluding the site from restraint policies, it was clearly signalled in the process of plan adoption that the site was a candidate for development. The plan strategy promotes a range of uses intended to underpin the wider regeneration effort of the borough. The proposals bring forward many of the uses the strategy seeks to deliver. The detailed criteria set out in the range of policies seeking to control the standards to be achieved in new development can be satisfied. It is clear the proposals accord with the development plan. To this end the proposals do not need to be referred to the Secretary of State under the terms of the Development Plan Direction. The retail proposals are not of a scale to require referral under the terms of the shopping direction.

43. Mr White makes a number of criticisms of those passages. He says that, contrary to paragraph 11.1, the site is subject to a specific restraint in the form of policies L1C and L1D, and that it is "available to be brought forward for development" only if the requirements of those policies are met and in particular if alternative open space is provided. The advice in paragraph 11.4 should have been qualified by words to the effect that part of the overall plan strategy was to protect open space and that the proposals would accord with the strategy only if proper provision were made for open space. Reference to policies L1C and L1D is made only in paragraph 11.6, and then only as policies that "seek to control the quality of development" (see paragraph 11.5). They should have been identified as policies that restrain development rather than as merely controlling the quality of development. These same defects run through the conclusion at paragraphs 11.11 and 11.12. The advice was seriously misleading in suggesting that the proposal was in accordance with policy when in fact it was contrary to policies L1C and/or L1D; and this resulted in inadequate consideration being given by members to the loss of open space and to the need to balance that harm against the benefits of the proposed development.
44. Similar points are made about other parts of the reports. It is said that the overarching report's summary of the position concerning the office development failed to mention policies L1C and L1D at all. The individual report on the Leigh Sports Village listed them among relevant development plan policies but referred across to the analysis in section 11 of the overarching report. The individual report on the office development mentioned policy L1C though not policy L1D among relevant development plan policies and listed the loss of open space, including the change in walking experience from an open space in the countryside to an urbanised one, among the objections, but observed only that "[w]hilst this is an understandable loss for the relatively small number of people who currently use the site, it takes no account of the scheme's potential to enhance opportunities for sport and recreation to a much wider population". It is submitted that again there was a failure to grapple with the implications of policies L1C and L1D.
45. A subsidiary aspect of the claimant's case on ground 1 concerns the application of national guidance in PPG17, Planning for Open Space, Sport and Recreation. Paragraph 10 of PPG17 states:

"Existing open space, sports and recreational buildings and land should not be built on unless an assessment has been undertaken which has clearly shown the open space or the buildings and land to be surplus to requirements …."

46. It is said that no such assessment was carried out in this case, and it is plain that the land was not surplus to requirements. The detailed analysis in the EIA shows that the development will have significant impacts on leisure use and that it cannot be said that there is a significant amount of open space in this part of Leigh. It is therefore submitted that the attention of members should have been drawn to this part of PPG17 and to the failure to comply with it. That was not done. In consequence, members failed to have regard to a material consideration when reaching their decision.
47. The response by Miss Stockley for the council and by Miss Patterson for the developer may be summarised as follows. The officers' reports drew the attention of members to policies L1C and L1D in terms that, when the reports are read as a whole, were accurate and sufficient. Members took those policies into consideration when assessing, in accordance with the advice correctly given at paragraphs 10.1-10.2 of the overarching report, whether the proposals were in accordance with the development plan as a whole. Reference was made to the loss of open space and to the implications of that loss both as regards recreation and as regards visual amenity. Members were aware of the way in which the site was used for formal and informal recreational purposes. They were also aware of the proximity, across the road, of Pennington Park, a large country park with free access to the public. Their local knowledge was enhanced by the site visits they carried out. They clearly took into account the loss of open space and balanced it against the benefits of the proposals.
48. Among the additional passages in the officers' reports to which Miss Stockley drew my attention are paragraph 11.33 of the overarching report (on landscape impact); parts of the individual report on the Leigh Sports Village that dealt with objections (including loss of open space and area use for amenity), visual impact, and functional impact having regard to the existing public rights of way; and parts of the individual report on the office development that dealt with objections (including loss of open space and amenity).
49. She also pointed out that the EIA, which members had before them, included an entire section (at pages 26-33 of the EIA, section 4.1.2) on impacts on formal and informal leisure use of the site, including the following passage which reflects to a considerable extent the concerns expressed by the claimant in these proceedings:

"There will also be significant impacts in terms of informal leisure usage of the site. The surroundings for walking and informal play will be significantly different in many parts of the site. Traditional informal activities, such as dog exercising, will be subject to considerable (and physical) restrictions to prevent fouling of playing areas.

Comments on the potential impacts of the development upon the site, both positive and negative, have been received as part of the public consultation process described in Section 1 of this document. Positive comments have exceeded negative ones, although in some cases the latter are supportive in principle whilst being critical of particular elements of the scheme" (original emphasis).

It may also be noted that, immediately before that passage, the EIA observed that the proposed development would be expected to have a significant impact on the development of Pennington Park, including opportunities to improve access to the park and complement the proposed new visitor facilities there.

50. Miss Stockley also drew my attention to a section in the overarching report that commented on issues raised by the Xanadu decision. It was observed in paragraph 11.39 that:

"… As the current proposal is different in nature, scale, function and target audience it is inevitable that it will fit differently with Development Plan policies, than the Xanadu proposal did. Consequently attempts to draw parallels between the two proposals are not helpful."

51. As to PPG17, it is submitted by Miss Stockley, again supported by Miss Patterson, that the attention of members was drawn to it and that the guidance contained in it was adequately reflected in any event in the policies of the existing UDP. It is accepted that there was no local needs assessment in accordance with paragraph 10 of PPG17, but submitted that such an assessment was not required in the particular circumstances and would plainly have made no difference. More generally, it is said that PPG17 should be considered as a whole and that the great improvement in overall recreational facilities arising out of the proposed development is fully in accordance with the general thrust of the advice contained in it.
52. If there was a failure to take into account any particular features of the UDP policies or national guidance, it is submitted that there is no real possibility that the matter would have made any difference to the decision, given the scale of regenerative benefits weighing so heavily in favour of the proposals. Reliance is placed on Bolton MBC v. Secretary of State for the Environment (1990) 61 P&CR 343 at 352-3, where Glidewell LJ included the following in a statement of relevant principles:

"2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb 'might', I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.

3. If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account.

…

6. If the judge concludes that the matter was 'fundamental to the decision' or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid."

53. Alternatively it is submitted that if the court does find that the council failed to take into account a material consideration, it should nonetheless refuse relief in the exercise of its discretion, again on the ground that the decision would clearly have been the same if the matter had been taken into account.

Conclusions on ground 1

54. Although policies L1C and L1D were included in the large list of policies that the officers' reports drew to the attention of members of the planning committee, the reports did not do full justice to those policies, with the result that members were unaware of their full import. In particular, the reports did not bring out that the policies represented a hurdle to the grant of planning permission as a result of the loss of open space. It was misleading to describe them in paragraphs 11.5-11.6 of the overarching report as "policies that seek to control the quality of development", rather than indicating that they provided that development would not be permitted unless certain conditions were met.
55. That does not mean, however, that I accept the entirety of the claimant's criticisms of the treatment of the policies in the officers' reports. It seems to me that the policies were not "site specific restraint policies" of the kind referred to in paragraph 11.1 of the overarching report. Nor do I consider it to have been wrong to refer to the site as "available to be brought forward for development within the life time of the plan" (paragraph 11.1), or even to refer to an expectation that it would be brought forward for development (paragraph 11.1). Given the planning history of the site, the allocation of part of it for development under the emerging plan, and the overall circumstances, it was in my view reasonable to refer to the site as one that could be brought forward for development. The error, to the extent that there was one, lay in failing to identify that in being brought forward it had to get over the hurdle of policies L1C and L1D.
56. In concluding that the reports were to that extent deficient, I have taken into account what was said in Oxton Farms v. Selby District Council (Court of Appeal judgment of 18 April 1997), to which Miss Patterson referred me, about the general approach to be taken towards reports of this kind.
57. The officers' reports in this case had so much ground to cover that I can readily understand why they did not deal as fully as they should have done with policies L1C and L1D. Had the matters now canvassed been raised in terms in the representations - I have pointed out that the claimant did not make any objection at all at the time - no doubt they would have been dealt with more fully.
58. The deficiency in the reports meant that members of the committee did not take the full terms of the policies into account in making a judgment about the compatibility of the proposals with the development plan or in reaching their overall decision on whether the planning permissions should be granted. In my view this can properly be characterised as a failure to take into account a material consideration, since it concerns an inadequate understanding of policies that were expressly identified in the reports as relevant policies of the development plan. This situation does not seem to me to be what Glidewell LJ had in mind in the passage from Bolton relied on by Miss Patterson.
59. I am satisfied, however, that if the attention of members had been drawn to the full terms of the policies, the outcome would have been the same.
60. The issues of the loss of recreational open space and the effect on visual amenity were squarely before the committee, and members had ample material both in the reports and from their local knowledge and site visits to make a proper assessment of those issues. They had to be assessed in the context of proposals that would lead to major improvements in formal recreational facilities and that would have the wider regenerative and other benefits identified in the reports. Moreover the context was materially different from that considered by the inspector and the Secretary of State in relation to the Xanadu application in 2000.
61. In all the circumstances I am satisfied that, if members had grappled with policies L1C and L1D as fully as they should have done, they would still have concluded that the Leigh Sports Village proposal complied with the development plan as a whole and they would not have regarded the non-compliance with the policies as a significant additional reason why the office proposal failed to comply with the development plan.
62. In any event I have no doubt that if the extent of non-compliance with policies L1C and L1D had been put in the balance with all the other considerations set out in the reports, the same clear conclusion would have been reached that planning permission should be granted, whether or not the proposals were considered to comply with the development plan as a whole. The overall thrust of the officers' reports, as reflected in the conclusions and recommendations set out earlier in this judgment in respect of each of the proposals, was that the disadvantages were significantly outweighed by the benefits. In my view there is no real possibility that detailed consideration of policies L1C and L1D would have altered that outcome.
63. The same applies to PPG17. It may be that the reports should have drawn the attention of members to what is said in paragraph 10 of PPG17 about the carrying out of an assessment as to whether the open space is surplus to requirements (though it has to be said that the general tenor of PPG17 is adequately catered for in the UDP policies and in the matters covered in the reports). But the failure to draw that matter to the attention of members is of no materiality. Members took due account in any event of the loss of open space and its impact on recreational use and amenity. There is no real possibility that consideration of this particular aspect of PPG17 would have affected their decision.
64. For those reasons I conclude that, although there were deficiencies in the officers' reports, they ought not to lead to the quashing of the planning permissions granted. This is a case where the court ought to refuse relief in the exercise of its discretion, rather than require the council to go through the decision-making process again (with the resulting delay and risk to funding) in order to reach what in my judgment would inevitably be the same conclusion.

Ground 2: loss of sports pitches

65. The point here can be expressed shortly. Although the Leigh Sports Village development includes a number of new sports pitches (of much better quality than the existing pitches), the development if viewed by itself will result in a net loss of sports pitches. The residential and retail warehouse developments will also result in the loss of sports pitches. The pitches at the Howe Bridge site are intended to compensate for those lost at the other sites. Policy L1C requires alternative provision "of at least equivalent standard in an appropriate location". No complaint is made about the standard of the alternative provision. As regards appropriateness of location, however, it is submitted that PPG17 adds a dimension that is not reflected in policy L1C. Paragraph 13 of PPG17 states:

"The new land and facility should be at least as accessible to current and potential new users, and at least equivalent in terms of size, usefulness, attractiveness and quality" (emphasis added).

The contention advanced is that Howe Bridge is not as accessible as the existing locations and that this aspect of national policy was not drawn to the attention of members of the planning committee, with the result that they failed to have regard to a material consideration.

66. In my judgment there is no substance to that contention. I am inclined to the view that policy L1C does adequately reflect the substance of the guidance in paragraph 13 of PPG17, in that the reference to "an appropriate location" embraces the concept of accessibility. But in any event the report on the Howe Bridge proposal drew members' attention to the relevant part of PPG17 (albeit by the rather brief summary that "the new facility should be of equivalent size and utility and be accessible"). More importantly, there was simply no issue about accessibility. The point self-evidently does not arise in relation to the substantial number of new pitches at the Leigh Sports Village site, which are in the same location as now. So far as concerns the replacement pitches at Howe Bridge, none of the representations suggested that the site would be less accessible, and there is no evidence whatsoever to show that existing or potential users of the existing pitches will find it more difficult to get to it. It is a short distance to the north of the town, on a main bus corridor. Moreover members of the committee visited all the sites and were well placed to judge the appropriateness of the Howe Bridge site, including its accessibility.
67. Accordingly there was in my view no error of law, let alone a material error, in relation to the location of the alternative provision of sports pitches.

Ground 3: reasons

68. This, too, is a short point. It is submitted that if, contrary to the claimant's case on ground 1, members of the planning committee did have proper regard to policies L1C and L1D in relation to the loss of open space, they failed to give reasons why they chose to depart from the policies. That failure vitiated the decision. Reliance is placed on the statement of relevant principles in EC Gransden & Co. Ltd. v. Secretary of State for the Environment [1986] JPL 519, which includes this passage at page 521:

"Thirdly, the fact that a body had to have regard to the policy did not mean that it needed necessarily to follow the policy. However, if it was going to depart from the policy, it had to give a clear reason for not doing so in order that the recipient of its decision would know why the decision was being made as an exception to the policy and the grounds upon which the decision was taken."

69. In the light of my conclusions on ground 1, this ground does not in my view arise for determination. The deficiency here lay in the failure of the officers' reports to bring to the attention of members the full import of policies L1C and L1D, with the result that members of the committee did not grapple with those policies as fully as they should have done. It is idle to speculate on the reasons that would or should have been given if the matter had been drawn properly to the attention of members.
70. In any event, if there was any failure to give reasons, it would not lead me to grant relief. As I have said in relation to ground 1, I am satisfied that the outcome would have been the same even if proper consideration had been given to the full import of policies L1C and L1D. It is clear that the benefits of the proposal outweighed any disadvantages. If there was some inadequacy in the reasons relating specifically to the issues arising under policies L1C and L1D, it was not of significance in the overall context of the decision. This is a very different situation from that in Gransden, where there was a departure from a policy that was fundamental to the particular decision.
71. I therefore reject the claimant's case under ground 3.

Ground 4: enabling development

72. In deciding to grant planning permission for the retail warehouse, office and residential developments, the council relied inter alia on the fact that they were component parts of an overall package with the Leigh Sports Village development. In relation to the office development, in particular, the benefits arising from the Leigh Sports Village development were considered to outweigh the adverse features of the office development viewed by itself. In relation to the retail warehouse and residential developments, the benefits arising from the Leigh Sports Village development were viewed as additional considerations in support of proposals that were in any event considered to be acceptable in themselves.
73. It was common ground before me that the central authority on this issue is R v. Westminster City Council, ex parte Monahan [1989] 1 PLR 188. That case concerned an application by the Royal Opera House, Covent Garden, for planning permission for a development scheme that included a commercial element which was essential to the funding of the proposed improvements to the opera house itself. Planning permission was granted even though the development, by virtue of the commercial element, was regarded as involving a departure from the development plan. In a challenge brought by members of the local community association, it was contended inter alia that the provision of finance to maintain the international status of the opera house was not a material planning consideration which could lawfully justify such a development. The Court of Appeal held that the council had been entitled to proceed on the basis that, but for the inclusion of the commercial element, the improvements to the opera house would not proceed at all; and that it was open to the council to take into account as a material consideration that the finances made available from the commercial element would enable the opera house improvements to be carried out.
74. In the course of his judgment Kerr LJ, at 55E-F, referred to an argument that, if the principle were accepted, it could be applied to developments with no physical proximity at all:

"That leaves Mr Carnwath's extreme hypothetical illustration of the undesirable office block in Victoria which is claimed to be necessary to generate the finance for a desirable development in Covent Garden. A combination of this nature would be unlikely to be properly entertained as a single planning application or as an application for one composite development, as in the present case. I therefore say no more about it save that all such cases would, in my view, involve considerations of fact and degree rather than of principle."

75. In relation to the same argument, Nicholls LJ at 59A-B, stated:

"I am not persuaded by this reductio ad absurdum argument. Circumstances vary so widely that it may be unsatisfactory and unwise to attempt to state a formula which is intended to provide a definitive answer in all types of case. All that need be said to decide this appeal is that the sites of the commercial development … are sufficiently close to the Opera House for it to have been proper for the local planning authority to treat the proposed development of the office sites … and the proposed improvements to the Opera House as forming part of one composite development project. As such it was open to the planning authority to balance the pros and cons of the various features of the scheme. It was open to the authority to treat the consequences, for the Opera House works, of granting or withholding permission for offices as a material consideration in considering the part of the application which related to offices."

76. Staughton LJ referred at 59D-60B to the difficulty in drawing a line between obvious extremes. He considered certain extreme cases and went on:

"Where then is the line to be drawn between those extremes? In my judgment, the answer lies in the speech of Viscount Dilhorne in Newbury District Council v. Secretary of State for the Environment [1981] AC 587 at p.599 …. Conditions imposed must 'fairly and reasonably relate to the development permitted', if they are to be valid. So must considerations, if they are to be material.

In the present case, the improvement of the Royal Opera House, B, is a development which the Westminster City Council considers to be desirable, for valid planning reasons. The building of office premises in close proximity, A, is necessary if development B is to occur. It can fairly and reasonably be said to relate to the proposed development which ought to be permitted. The whole is, to quote the words of Kerr LJ, a composite or related development. The offices are not ulterior or extraneous; they are part of the whole."

77. Having regard to those passages, Mr White submits that in the present case there had to be a determination by the members of the committee as to whether the developments relied on as enabling developments were located in sufficiently close proximity to the Leigh Sports Village development for them all to be regarded reasonably as a composite package. The officers' report, however, did not draw the attention of members to this issue. The relevant principles and the effect of Monahan were not correctly understood or conveyed to members.
78. The overarching report dealt in section 3 with "the role of enabling development". Paragraph 3.1 stated that enabling development which is essential to underpin the economics of granting a desirable planning permission is a material consideration that can be taken into account by the decision maker. The section went on to refer to national policy and to Monahan, quoting short passages from the judgments of Kerr LJ and Nichols LJ. It concluded that the role of enabling development was not only a relevant planning consideration, but had to be taken into account by the committee in reaching its decision. The weight to be attached to it was a matter for the committee having regard to all the relevant evidence. Section 4 then went on to examine the evidence concerning the financial interrelationship between the applications, concluding:

"4.10 In looking at development finance, there can be no absolutes as the market is subject to change with the national economic cycle. However, overall the assumptions made appear to be realistic. They strongly point to the requirement for cross subsidy funding if the sports village is to proceed. If the development as a whole is regarded as important to the regeneration of the borough and the Committee is satisfied that the scheme is unlikely to be brought forward in any other way, the enabling role of the components of the scheme can be given considerable weight."

79. Mr White submits that there was a failure to identify proximity of the sites as a relevant consideration, or to examine whether the sites were in sufficient proximity to satisfy the Monahan test. The issue was of particular importance for the residential development at Madeley Park and the retail warehouse development at Leigh East, which (unlike the office development at Atherleigh Way) were geographically some distance away from the Leigh Sports Village development. The result was that the committee failed to consider whether the sites were in sufficient proximity to make it reasonable to treat them together as a package.
80. Miss Stockley submits that the proposals can be seen clearly to meet the various tests laid down in Monahan. All the applications were made together and they were treated together at all times as a composite whole. There was a close financial relationship, as spelled out in section 4 of the overarching report. The sites were also in common ownership. The residential and retail warehouse sites had sports facilities that would be replaced by the facilities at Leigh Sports Village and Howe Bridge; and members of the committee were aware of the uses to which the various sites were already being put. Although the question of geographical proximity was not covered in the report, it was less important than these other links establishing a sufficient relationship between the developments.
81. Miss Patterson supported those submissions and pointed out that in Monahan the "enabling" commercial development was undesirable in itself, whereas in the present case the council considered the retail warehouse and residential developments to be acceptable in their own right, as well as having the advantage that they would assist in delivering the Leigh Sports Village development. Miss Patterson also referred me to Northumberland County Council v. Secretary of State for the Environment [1989] JPL 700, where it was held that, in determining whether the economic implications for one site could be taken into account when deciding on the grant of permission for another site, close physical proximity was not a necessary condition: it was for the decision-maker to determine whether another piece of land could properly be brought into consideration "as a matter of fact and degree in the circumstances of a particular case" (pages 703-705).

Conclusions on ground 4

82. In my judgment the council was fully entitled to treat these applications as a composite development and in particular, in considering the office, retail warehouse and residential applications, to have regard to their contribution to the viability of the Leigh Sports Village development and to the benefits that would result from that development. There was a close functional relationship between the sites, as well as a financial linkage and a linkage through ownership. It would have been better if the officers' report had drawn the attention of members to the issue of physical proximity, as a consideration relevant to the question whether the applications should be treated as a composite whole; but I am satisfied that the answer would have been the same if that had been done. The office site is in any event directly proximate to the Leigh Sports Village site. The retail warehouse and residential sites are some distance away, but not so far as to make it unreasonable to treat the applications together or to give rise to any real possibility that, in the particular circumstances, the members of the committee would have reached any conclusion other than that they should be treated together.
83. The claimant's case on this issue is made the less attractive by the fact that the retail warehouse and residential developments, to which the focus of the Monahan argument is directed, were considered to be acceptable in their own right. This is a very different situation from that under contemplation in Monahan, of otherwise undesirable development being granted permission because it enables a desirable development to proceed. Only in relation to the office development could it be said in the present case that permission was granted because it enabled the desirable Leigh Sports Village development to proceed; but in relation to the office development, as I have said, the claimant cannot advance any argument as to lack of physical proximity.
84. I should make clear that, even if it could be said that the failure of the officers' report to draw the attention of members to the issue of physical proximity resulted in a failure by members to take account of a material consideration, I would once more decline to grant relief in the exercise of my discretion.

Overall conclusion

85. The claimant has advanced points that, save in relation to ground 2, can properly be characterised as arguable. I therefore grant permission to apply for judicial review on grounds 1, 3 and 4, but refuse it on ground 2.
86. In relation to the grounds on which permission is granted, however, the claimant's substantive case fails for the reasons given in this judgment. I am of the firm view that, to the extent that there were errors or deficiencies in the officers' reports, they did not affect the planning committee's decision to grant the planning permissions sought. It is not a case that calls for intervention by the court. The claim must therefore be dismissed.

MISS ALLAN: Thank you, your Lordship. As costs follow the event and the defendant has been wholly successful I would like to make firstly an application that the claimant pay the costs of the defendant.

MR JUSTICE RICHARDS: You are appearing for the defendant and the interested parties?

MISS ALLAN: I have two applications to make. I feel they should be made separately.

MR JUSTICE RICHARDS: So you are applying for costs - for the claimant to pay the defendant's costs.

MISS ALLAN: Yes. I understand as the claimant is publicly funded --

MR JUSTICE RICHARDS: It will have to be subject to the usual qualifications about postponement of determination of liability. Yes.

MISS ALLAN: Would your Lordship like me to run through those?

MR JUSTICE RICHARDS: The wording? No. The associate will be able to deal with that in the form of the order, far better than I can even.

MISS ALLAN: I am obliged. I understand my learned friend does not intend to oppose the application of the defendant.

MR JUSTICE RICHARDS: Let me check on that. Let us deal with the defendant first. Is that right?

MR WHITE: My Lord I cannot resist the principle of costs to the defendant, the first defendant. I anticipate there is going to be an application in respect of the interested party's costs, my Lord, which I do and will resist in the event the application is made.

MR JUSTICE RICHARDS: I see. At least we know where we stand in the defendant's costs. Yes. So now, with your other hat on, you are applying for costs for the interested party?

MISS ALLAN: That is correct. I understand it is entirely the discretion of the court and that --

MR JUSTICE RICHARDS: It is not just that, but the ordinary rule is that - well, there has to be some special reason to justify the payment of costs to the interested party and some separate interest that they have in the matter or separate reason why they had to attend.

MISS ALLAN: As I understand in relation to the well-known case of Bolton it is a matter of separate issue or an interest requiring separate representation. To that end I simply make the following two points in which I would submit that the interested party required separate representation. Firstly, primarily in relation to the issue of delay of the application for judicial review. There were issues --

MR JUSTICE RICHARDS: That is the ground on which you lost.

MISS ALLAN: On the matter -- well, I lost in relation to the issue but in the matter of the interested party requiring separate representation on that matter because there were issues regarding undertakings given by the interested party, their security and the contracts in which, regardless of whether they lost, they felt that separate representation was required as the defendant themselves had no knowledge of them. That would be the first and main ground on which I would submit that the interested party required separate representation. The very secondary point are points highlighted by your Lordship in the judgment at paragraph 81. Those are points made specifically by Miss Patterson for the interested party in relation to ground 4 of the application, whether the application can be (inaudible). Those are the two issues in which I would --

MR JUSTICE RICHARDS: That was a separate argument which you could have advanced but did not actually advance but she did.

MISS ALLAN: I certainly did not advance it.

MR JUSTICE RICHARDS: Yes, I see.

MISS ALLAN: Unless I can be of further assistance.

MR JUSTICE RICHARDS: Thank you. There will be no order for costs in relation to the interested party. It seems to me that the circumstances of the case do not justify two orders as to costs. All the matters capable of being advanced against the claimant could have been advanced even if they were not in fact advanced by the defendant counsel. In so far as reliance is placed on the issue of delay and the matters advanced by the interested party in relation to that issue, the fact is that the interested party lost on that issue and it does not seem to me to provide a proper basis for an award of costs by the claimant to the interested party. More generally I am not satisfied that the Bolton criteria are satisfied in this case so as to justify a separate award of costs.

MISS ALLAN: I am obliged.

MR JUSTICE RICHARDS: That completes the matter so far as you are concerned. Have you any applications, Mr White?

MR WHITE: My Lord, I do. I understand of course that my client lost on the exercise of your Lordship's discretion. I just have two very short points to make, my Lord. Whilst I entirely understand and accept my Lord's reasoning in respect of discretion, counsel would not have made a different decision had the errors of law been fully identified in the reports -- just two points my Lord. Firstly, if the matter had gone back to re-determination there would have been an opportunity of course for my clients to have re-petitioned the Secretary of State as to whether the application should be called in for determination. My Lord I say that that might have made a difference had the Secretary of State been fully aware of the deficiency in the reports relating to the issue of amenity open space as opposed to playing fields etcetera. The second point, my Lord, of course had the matter been re-determined whilst the overall decision may not have been different there may have been compensatory - a requirement from the council for the applicant to provide compensatory open space or recreation purposes as part of the application. My Lord, those are just my two points in relation to the exercise of the court's discretion.

MR JUSTICE RICHARDS: Thank you very much indeed. Very sensibly put in an economical way by Mr White though the application is, it is refused on the basis that relief was refused in the exercise of discretion and I am not satisfied that there is any real prospect of success in the Court of Appeal in challenging that exercise of discretion.