England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		22nd July 2008

1. MR JUSTICE SULLIVAN: In these two joined rolled up hearings of the claimants' applications for permission to apply for judicial review, with the substantive hearing to follow if permission is granted, the claimants, Dove 2000 Limited, Newhaven Town Council and Lewes District Friends of the Earth Limited, seek a quashing order in respect of the defendant's decision dated 12th November 2007 to grant planning permission to Veolia ES South Downs Limited (the interested party) for the construction and operation of an energy recovery facility ("ERF"), together with ancillary infrastructure including a waste transfer station, on land at the northern end of North Quay Road at Newhaven ("the site").
2. The hearing has been expedited and in view of the urgency of the matter and the need to give the parties a decision today, I do not set out the lengthy planning history of the matter about which there is no significant dispute between the parties.
3. The application was the subject of a very lengthy and very detailed report to the committee by the defendant's Assistant Director of Policy, Transport and Environment. The report reminded members that the proposal had generated the most public interest of any planning application considered by the defendant and that the consultation process had resulted in a substantial number of objections, principally from Newhaven but also from further afield in East Sussex and beyond. Appendix 2 to the report is a schedule which analyses the numerous comments that had been received and gives the officer's responses to those comments. The appendix shows that the objectors are numbered in thousands.
4. The claimants challenge the grant of planning permission on five grounds which are summarised in Mr Harwood's skeleton argument on behalf of Dove as follows:

"(i) the County Council erred in law and had regard to an immaterial consideration in relying upon the Pollution Prevention and Control permit ('PPC permit') which had been unlawfully granted and was subsequently quashed by the High Court (on 5th December 2007);

(ii) the County Council failed to have regard to a material consideration, that the reasoned justification for Waste Local Plan Policy WLP9 regarded a Newhaven incinerator as serving only the west of the joint Councils' area, when the incinerator proposed would deal with waste across the whole area;

(iii) the County Council failed to have regard to material consideration, being the recycling targets for 2020 and 2025 in Regional Spatial Strategy Policy W6 and the requirement to provide facilities to meet those targets in Policy W7;

(iv) the County Council's conclusion that the transport of waste by rail (as required by Policies WLP2(b) and WLP19(b)) was not practicable, was based on no evidence and was irrational as the evidence before the committee was 'the applicant accepts that there is no practical reason why waste could not be transported by rail from the Hollingdean transfer station' and 'it is clear that trains could be used to haul waste from Brighton to the ERF site'. In addition the County Council failed to have regard to paragraph 6.30 of the Waste Local Plan which said that the location 'would be suitable for rail or water transfer of waste';

(v) the County Council misunderstood and failed to apply the sequential test for development at risk of flooding, contrary to PPS25, without having any reason for failing to apply [that] policy or recognising that it had not done so."

5. Having heard the claimant's submissions, I concluded that grounds 2, 4 and 5 were not arguable and it is convenient to explain why at the outset.

Ground 2

6. Policy WLP9 in the East Sussex and Brighton and Hove Waste Local Plan ("the Local Plan"), which is a site specific allocation for energy from waste and material recovery facilities is in these terms:

"Proposals for energy from waste with material recovery facilities will be supported on suitable land within the following area of search as shown on the proposals map and accompanying inset plan in Appendix 4.

North Quay, Newhaven (Area of Search) (Inset Plan 5)"

The site is within the relatively small area of search in the Local Plan.

7. Since both grounds 2 and 4 are concerned with the reasoned justification for WLP9, it is sensible to set out paragraphs 6.29 and 6.30. Under the heading "Sites for Energy from Waste Plants":

"6.29. A facility at North Quay, Newhaven would serve the western part of the Plan Area. The area of search comprises an existing industrial estate which contains aggregate recycling and scrap metal transfer waste facilities and is accessed by water and rail. Existing waste uses and aggregate handling and processing facilities would be safeguarded but some redevelopment within the existing estate may be necessary and a development brief would address these issues. The transportation of waste by rail, or water, will be encouraged.

6.30. The location at North Quay, Newhaven would be suitable for rail or water transfer of waste, to or from road vehicles, subject to the rail link being reopened and/or the site selected having access to the wharf. This could be used for bringing in waste to a facility or facilities or for taking out recyclates or saleable by-products of waste management (including waste reprocessing) and residues. Proposals for further waste recovery capacity, including energy from waste, will undoubtedly come forward in the east of the Plan area. Any such proposal will be considered on its merits using the Plan's generic policies, including Policy WLP19."

8. As I understand ground 2, the complaint is that the proposed ERF would receive waste from the whole of the Waste Local Plan area, whereas paragraph 6.29 made it clear that it was intended to receive waste from the western part of the Plan area only. Thus, members were misled by the report into believing that Policy WLP9 supported the proposal when in fact it is said that it did not. This complaint is misconceived on two grounds: firstly, in the way in which the claimant interprets the policy in the Local Plan, and secondly, the way in which the claimant interprets the report. While paragraph 6.29 of the Local Plan says that the facility at North Quay would serve the western part of the Plan area (ie, the Brighton and Hove conurbation to the west of Newhaven), it does not say that it would be acceptable only if it serves the western but not the eastern part of the plan area.
9. Paragraph 8.38 of the report explained why it was difficult to find a suitable site further to the west to serve the western part of the Plan area:

"Preparation of the Waste Local Plan included a detailed study of potential waste management sites, which were assessed against a set of criteria, in order to determine a short-list of sites suitable for various waste management facilities. The study concluded that, in the western part of the Plan area, it was not possible to identify an acceptable site for an EFW plant within the built-up area of Brighton and Hove, because of the densely developed built-up area, the inadequate highway network, and the constraints imposed by the Area of Outstanding Natural Beauty. A detailed examination of the constraints indicated that the most appropriate location to serve the western area is an 'Area of Search' at North Quay for an EFW plant with material recovery facilities, now incorporated in the adopted WLP as Policy WLP9."

10. In the Local Plan, the North Quay proposal is put forward upon the basis that other proposals "will undoubtedly come forward in the east of the Plan area". Notwithstanding the confident tone of the explanatory text, it is necessarily implicit in that reasoning that the site specific allocation at North Quay may well be realised before any non site specific proposal comes forward to be assessed on its merits and in the light of the general policies in the Local Plan, including policy WLP19. Thus, it could not possibly be contrary to Local Plan Policy WLP9 to grant planning permission for a proposal at North Quay, even though some other proposal, perhaps one better located to serve the eastern part of the Plan area, had not yet come forward. It is implicit in Policy WLP9 that, for a time at least, North Quay may well be the first such facility in the Local Plan area. That does not mean to say that the Local Plan proposes that it shall be the only facility in the Local Plan area.
11. This indeed is the approach adopted in the report (see paragraphs 8.51 to 8.57). Paragraph 8.51 makes the point that to achieve the aim of significantly increasing the amount of waste reused, recycled or composted and, by doing so, to reduce the proportion of waste going to landfill:

" . . . an integrated pattern of new waste management facilities will be required which would include household waste sites, transfer stations, recycling and composting plants, and waste treatment plants which include energy capture."

The final sentence of that paragraph makes the point that implementation of the strategy "is pressing -- existing landfill capacity in the area will be full by 2008". Thus it is that paragraph 8.52 says that the proposal "is an important part of the integrated strategy handling residual municipal waste that would otherwise be landfilled".

12. In short, the proposal is part of an integrated strategy that includes other facilities referred to in the report and will, in due course, include yet further facilities in the east of the Plan area. The appeal proposal does not purport to be the whole answer, merely an important step in getting the right answer to the problem faced within the Waste Local Plan area.
13. The report endorses in paragraph 8.43 the interested party's assessment that North Quay is "well located in relation to the main areas of waste arisings in the Plan area, with good transport links and the potential for rail or water transport to be used". That reference to rail transport leads me to ground 4.

Ground 4

14. The complaint is that the report made no mention of the fact that, in the reasoned justification for Policy WLP9, North Quay had been specifically identified in paragraph 6.30 as being "suitable for rail . . . transfer of waste, to or from road vehicles". Again, the submission misconstrues the policy because it ignores the words following that passage in paragraph 6.30, "subject to the rail link being reopened". Thus, the reasoned justification does not say that the rail link must be reopened or that rail transport must or should be used.
15. That matter is dealt with in Policy WLP19 which is a generic policy dealing with energy from waste facilities and which contains the following, that proposals shall "pursuant to Policy WLP2, provide for the majority of the waste and residues to be transported to and from the site by rail or water unless it is demonstrated why that would not be practicable". WLP2 at (b) says much the same thing. Under the heading "Transport Strategy" it says:

"Proposals will be required to demonstrate that . . . .

(b) access and use by modes of transport other than road have been considered and, if not proposed, why it would not be practicable . . . "

16. Against this policy background, the report unsurprisingly considered the practicality of reopening the rail link. Thus, in paragraphs 8.119 to 8.126 the report referred to Policy WLP19, said that the practicality of transporting the waste by rail or water had been dealt with only briefly in the application before alternative methods of transport to rail had been dismissed, and said that that matter had been specifically raised with the applicants.
17. Paragraph 8.20 pointed out that the site adjoined the Lewes to Seaford railway and a siding previously used for aggregates traffic was located west of the main line and immediately to the south of the application site. But it is said that the siding connection had been disconnected and the associated signalling had been removed. Paragraph 8.121 referred to discussions with the railway authorities and said that following those discussions the applicant for planning permission (the interested party) had accepted that there was no practical reason why waste could not be transported by rail from the Hollingdean transfer station which joins the Brighton/Lewes line to Newhaven:

"However, the applicant rejects the option because the physical cost in tonne/miles is higher than the equivalent costs of road transport and, therefore, unviable. There are a number of practical difficulties evident in any proposal to provide for the rail haulage of waste. The existing siding at Newhaven would require reconnection and a new siding, together with a loading facility, would be needed at Hollingdean (the formation of a former siding serving an old incinerator on the site having long since disappeared), whilst the provision of a freight locomotive and a set of wagons, in an area with virtually no other rail freight traffic, could present logistical problems for rail freight companies."

18. Paragraph 8.123 says that the costs associated with a development are not normally material to planning consideration, but the point is made that only a certain proportion of traffic movements would be removed from the road network, and the further point is made that the train movements would still involve travel through the AONB to reach the ERF. A concern regarding transportation through the AONB had not therefore been overcome.
19. The threads were drawn together in paragraph 8.124 where the Assistant Director said:

"On balance, I consider that whilst there are sound environmental reasons for preferring rail freight, in principle, the overall benefits in the case of this application are limited, because of the relatively small quantities of material involved, and the practical difficulty of connecting the Hollingdean transfer station site to the rail network, which would be crucial to a rail-haul operation. However, it is clear that siting of the development at North Quay is well located for rail-haul and the applicant should be encouraged to keep the option open."

Paragraph 8.125 deals with the practicalities of use of the wharf. Paragraph 8.126 concludes:

"On this assessment, I accept that there are currently practical difficulties associated with the use of alternatives to road transport. Accordingly, I conclude that there is no conflict with Waste Local Plan Policies WLP2(b) and WLP19(b). The proposal meets for the most part the objectives set out in the Structure Plan Policy TR1(h). The future achievement of rail or sea movement of waste is not precluded and an informative is suggested to ensure its viability is kept under review. On this basis I consider the proposal accords with the above policies."

20. Thus, the report acknowledges that the site is suitable for rail transfer, subject to reopening the railway, acknowledges that this mode of transport is to be preferred in policy terms if practicable but concludes, for the reasons given in the report, including cost, that it is not practicable at present. Although the outcome may be disappointing to those who favour rail as opposed to road transport, especially in view of the fact that the potential rail link was one of the factors in favour of the site, it cannot possibly be said that the approach in the report is unreasonable. The potential for rail haulage remains, even though it is not practicable at the moment. The economics of the operations may change and the applicant has been asked to keep that option under review. Nor is there any conflict between the reasoning in the report that there is no conflict with policies WLP2(b) and 19(b) and the summary reasons for granting planning permission which said:

"The current absence of proposals for the beneficial use of hot water and alternative transport may be a disadvantage to the proposal which does not fully fulfil the policy objectives in Waste Local Plan policies WLP4 and WLP19(c). Nevertheless, 16 and a half megawatts of exported electricity will be generated and the options of rail and sea removal of waste are retained. An informative is suggested to the applicant to keep these opportunities under review."

Because there is no rail link, the relevant policies are not fully fulfilled. Equally, because the rail link is at present impractical, in the view of the author of the report, there is no conflict with those policies.

Ground 5

21. PPS25: Development and Flood Risk, advises Local Planning authorities to apply a sequential test:

"Local planning authorities allocating land in local development documents for development should apply the Sequential Test (see Annex D and Table D.1) to demonstrate that there are no reasonably available sites in areas with a lower probability of flooding that would be appropriate to the type of development or land use proposed. A sequential approach should be used in areas known to be at risk from other forms of flooding."

Paragraph 18 deals with the exception test and says:

"If, following application of the Sequential Test in Annex D, it is not possible, consistent with wider sustainability objectives, for the development to be located in zones of lower probability of flooding, the Exception Test can be applied as detailed in paras. D9–D14. The Test provides a method of managing flood risk while still allowing necessary development to occur."

22. The complaint is that although the report referred to PPS25, it proceeded straight to the exception test, omitting the sequential test. It is therefore said that there was a breach of the policy guidance in PPS25. It is true, if one looks at paragraphs 8.170 to 8.176 of the report which deal with flood protection, that, having summarised the relevant policies, including the need to apply the sequential test (see paragraph 8.170), there is no express consideration of the sequential test and the report does proceed to the conclusion in paragraph 8.175:

"The Environment Agency is satisfied with the flood protection measures proposed. Assessed against the 'exception test' policy within PPS25, waste treatment facilities are classified as being less vulnerable to flood risk and acceptable within flood risk areas having regard to the ERF's wider community benefits and its location within North Quay on previously developed land. In flood risk terms the proposals, therefore, accord with PPS1, PPS25, Structure Plan Policy S1(h) and Waste Local Plan Policy WLP37."

23. If one asks why did the report deal with flood protection in that way, the answer, in my judgment, is obvious as soon as one reads the report as a whole. This was a site within a relatively small area of search, North Quay, that had been identified in the Local Plan after a process of examining alternative sites. Moreover, that process had been repeated in the interested party's assessment under the EIA Regulations. Those matters were dealt with in paragraphs 8.37 to 8.43 of the report. In the last sentence of paragraph 8.38, in respect of the preparation of the Local Plan, the report said:

"A detailed examination of the constraints indicated that the most appropriate location to serve the western area is an 'Area of Search' at North Quay for an EFW plant with material recovery facilities, now incorporated in the adopted WLP as Policy WLP9."

Having considered the interested party's EIA assessment of alternative sites, the final sentence in paragraph 8.43 of the report concluded:

"I consider that the applicant's study is robust and has demonstrated that North Quay is the most appropriate site. This is in accordance with the extensive studies carried out for the WLP."

24. In these circumstances, where it had been concluded that this was the most appropriate site for this particular facility, it is readily understandable that it was not considered that there was a need to effectively repeat the process by going through the sequential test once again. PPS25 has to be applied with a measure of common sense. When it speaks of there being no reasonably available sites with a lower probability of flooding it means no reasonably available sites for development of the kind that is being proposed. It is common ground that this particular kind of development is particularly demanding in terms of its requirements. It is extremely difficult to find a suitable site for an ERF.
25. The complaint made by the claimants is, in any event, wholly academic, because PPS25 advises local planning authorities to work in partnership with the Environment Agency, making the best use of its particular expertise (see paragraphs 6 and 25-29 of PPS25).
26. The defendant consulted the Environment Agency. Its response is as recorded in paragraph 8.175. It did not raise any objection, having considered the matter pursuant to PPS25. There can be little doubt that if the Environment Agency had been in the least dissatisfied with the earlier assessments of alternative sites then it would have said so, and insisted that a sequential test be applied once again. In this respect, this case is readily distinguishable from the authority referred to by Mr Nardell, R (on the application of the Environment Agency) v Tonbridge and Malling Borough Council [2005] EWHC 3261 Admin, where it was the Environment Agency itself which was challenging a grant of planning permission because it was contended that the sequential approach in PPS25 had not been adopted by the Local Planning authority in that case. The manner in which the sequential test should be applied is not prescribed in detail in PPS25. If the Environment Agency had not been satisfied with the consideration of the alternative sites in the Local Plan process and the EIA process it could, and no doubt would, have said so. The complaint is wholly artificial and treats policy advice as though it was a legal obstacle test rather than an aid to practical environmental decision-making.
27. I turn therefore to the two remaining grounds of challenge, grounds 1 and 3.

Ground 1

28. The PPC permit was granted on 6th November 2006. It was challenged in judicial review proceedings and at the time that the planning permission dated 1st November 2007 was granted, those proceedings were outstanding. On 5th December 2007 I quashed the permit by consent. What is the effect of that quashing on the validity of the planning permission? The position adopted in the claimant's skeleton argument was that, having been quashed, the PPC permit never had any legal effect whatsoever, therefore in relying upon it in the report the defendant took into consideration a legally irrelevant matter.
29. In my judgment, it is unnecessary to examine the consequences in legal terms of the quashing of a permit or consent, not least because relief in judicial review is a matter for the discretion of the court. Thus, in practice in such cases the court will examine the extent to which and the reasons why the PPC permit was relied upon by the defendant when granting planning permission and the reasons for quashing the PPC permit to see what effect, if any, those reasons had on the defendant local planning authority's reliance on the PPC permit when granting planning permission. I remind myself that Mr Harwood correctly submitted that if a permit is quashed by consent then a consent order may not reflect the full extent of any legal error in that which has been quashed.
30. The starting point is that there can be no doubt that the report correctly advised members as to the respective functions of the two regimes: the granting of planning permission by the local planning authority and the granting of PPC permits by the Environment Agency (see paragraph 8.131). Paragraph 8.132 refers to the advice in PPS10 and PPS23. The latter states that:

"The planning and pollution control systems are separate but complementary. Pollution control is concerned with preventing pollution through the use of measures to prohibit or limit the release of substances to the environment from different sources to the lowest practicable level."

The report continues:

"Planning authorities are advised to focus on land use issues rather than the control of processes or emissions themselves. Planning authorities are advised to work on the assumption that the pollution control regime will be properly applied and enforced."

That policy advice reflects what is sometimes referred to as "the Gateshead approach" (see Gateshead Metropolitan Borough Council v Secretary of State for the Environment, Court of Appeal [1995] ELR 37).

31. Thus, in the case of vibration, odour, dust and litter, the report correctly distinguished between the planning conditions which would have effect during the construction phase and the PPC permit controls which would bite during the operational phase (see paragraphs 8.100 to 8.102). On a fair reading of those paragraphs, it is clear that the Assistant Director was satisfied that all of the matters therein considered -- namely vibration, odour, dust and litter -- could be, and would be, adequately controlled by conditions in the PPC permit. Quashing the permit has no effect upon those conclusions. There is no suggestion that the Environment Agency will not be prepared to issue a new PPC permit dealing with those issues in the same, or substantially the same, manner. Indeed, on 16th July the Environment Agency did issue a new draft permit saying that it was minded to grant a permit in the terms set out and inviting consultation responses.
32. Mr Harwood submitted that in at least one respect the defendant went further in relying on the Environment Agency's views in respect of air quality. Under the heading "Pollution Prevention and Control", paragraph 8.136 of the report says this:

"Accordingly, and in parallel with the submission of the planning application, the applicant submitted an application for a PPC authorisation for the operation of the plant to the Environment Agency. This has been the subject of rigorous examination, including further modelling of air dispersion using meteorological data from Newhaven. The Agency is satisfied that the modelling is valid, that the stack height is adequate and the emissions will have no significant impact on air quality. This authorisation was duly issued in November 2006 and means that the Agency is satisfied that the proposed design and operational regime for the plant will meet the required standards; as part of the authorisation, the Agency has set limits on various key pollutants and established a monitoring regime. The Agency have stated that 'we considered this application (on the PPC permit) very carefully before making our decision. We consulted extensively and have taken the views of all organisations and letters from the general public into consideration. Having done all this work, we are satisfied that the incinerator, if built and with our conditions, will not damage the environment or cause harm to human health'. Whilst the PPC permit has been the subject of judicial review at this point in time it remains in place and therefore its relevance to the consideration of air quality matters remains unaltered'."

The consideration of air quality did not stop there, because under the heading "Planning Assessment" in paragraph 8.137, the Assistant Director said:

"As an operational control, the issue of a PPC authorisation is not dependant on the grant of planning permission. This remains the responsibility of the County Council, and as part of the process of determining the application for the ERF, Members must be satisfied that there is no conflict with planning policies dealing with air quality and pollution irrespective of any authorisation under PPC."

That assessment is then set out in paragraphs 8.138 to 8.149 and the submission is that it incorporates reliance upon the Environment Agency's technical conclusions. Thus, for example, one finds in 8.146:

"The Agency is satisfied that this data enabled the dispersal of emissions, from the plant to be properly modelled, and that while the local micro-climate may sometimes alter the pattern of dispersal, it would not affect the concentration of emissions which would have a minimal impact on the local population and the environment."

That is merely one of a number of similar references from which it is plain that the author of the report endorsed and/or accepted the Environment Agency's technical conclusions. However, the overall conclusion is that contained in paragraph 8.147, namely:

"The emissions from the process would be subject to extensive treatment and rigorous controls in line with the EU Directive. Accordingly, there is no reason, or valid justification, to withhold permission on these grounds."

33. In substance, the author of the report is saying that while these are material planning considerations, he is satisfied that they can be and will be controlled through the PPC process. That this was the approach is confirmed by what is said in Appendix 2 to the report where one finds in response to a large number of points, under the heading "Air Quality, Pollution and Emissions", a text which sets out the comments of the Environment Agency and adds the words:

"The pollution, prevention and control aspect of the proposals have to be authorised by the Environment Agency."

In short, the report advised members that the PPC process was capable of dealing with those environmental issues and was also advising them that the Environment Agency was confident, because it had issued a PPC permit, that that was the case.

34. Although, as a matter of legal principle quashing the PPC permit for any reason would result in the whole of the permit being quashed (and I accept that a consent order merely identifies those flaws in the decision-making process which the defendant concedes), it is important to see why in this case the Environment Agency agreed that the permit should be quashed. Does it cast any doubt on the defendant's reliance on the Agency's views? The answer to that question is "No". If one looks at a letter from the Agency dated 30th November 2007 addressed to the claimant's solicitors in the judicial review proceedings in respect of the permit, that said:

"On reflection, the Agency accepts that the decision documents accompanying the permit did not set out the Agency's reasoning on CO2 emissions as fully as it could have. On that basis, and subject to what follows, the Agency will consent to an order to quash the permit so as to allow an opportunity to give further consideration to the issue of CO2 emissions more fully in the current application. Following the determination and prior to the final decision, the Agency will give notice of, advertise and consult upon its draft determination in accordance with [various paragraphs] of the Regulations."

The formal statement of matters justifying the making of the consent order included these passages:

"By a letter dated 30th November 2007, the Agency indicated that it accepted that the decision document accompanying the permit did not set out its reasoning on CO2 emissions as fully as it could have and agreed that the permit should be quashed so as to allow the Agency an opportunity to give further consideration to the issue of carbon dioxide emissions prior to re-determining the permit application. The Agency has also set out its position on the remainder of the claim, and in particular agreed that if a decision is made to grant the claim it should clarify its reasoning on the points raised in Mrs Day's original grounds 3 and 4 which alleged that the Agency failed to comply with its duty under section 85 of the Countryside and Rights of Way Act 2000 to have regard to effects on Areas of Outstanding Natural Beauty and failed to consider effects on the countryside, contrary to the Waste Management Licensing Regulations."

35. In short, for its part, the Environment Agency accepted that the reasons it gave for its decision were inadequate. For its part, it did not concede that there were any issues of concern which the report said would be addressed and would be sufficiently controlled by the PPC process that would not be either so addressed or controlled. The proof of the pudding is that on 16th July the Agency issued a new draft permit indicating that it was minded to grant a permit, subject to consultation. The substance of the permit (that is to say the way in which it deals with the various matters that are referred to in the report by way of controls and conditions) has not altered, although the reasons for imposing the various controls and conditions have been amplified.
36. Mr Harwood rightly submits that there is still no permit. The consultation period has only just begun. It is to be anticipated that there will be a large number of representations before it has ended, and there is always the possibility that there will be further judicial review proceedings if a further PPC permit is issued in the form in which the Agency is presently minded to issue it. All that may well be the case, but it has to be borne in mind that as a matter of law a PPC permit is not a pre-condition for a grant of planning permission. It is true that the defendant's approach is to ask applicants to obtain a PPC permit before it considers whether or not to grant planning permission, but that is not a legal requirement. The defendant approached the matter on the basis that while environmental pollution is in principle a material planning consideration, so too is the existence of the PPC regime and its ability to impose detailed controls on the operation of the ERF facility.
37. The reasons given in the report, including the Agency's view that it could satisfactorily deal with the issues that have been raised by objectors through the PPC process, have not been falsified by the quashing of the PPC permit on the basis that the Agency did not give sufficient reasons. There is nothing to suggest that for its part the Environment Agency is not satisfied that the PPC permit will be able to satisfactorily control those matters which are properly regarded by the report as being within the Agency's province, rather than that of the local planning authority, adopting the Gateshead approach.
38. In summary, the Environment Agency's views, as reported to the committee in the report, have not significantly changed. It has been prepared to amplify those views by giving further reasons. If the Agency's conclusions are legally flawed, and that is the conclusion in any future judicial review proceedings, then the position will be that even though there is a planning permission the ERF will not be able to operate unless and until a PPC permit. However, it will not mean that the grant of planning permission is invalid once the separate or complementary nature of the two regimes is properly recognised. For these reasons I reject ground 1.

Ground 3

39. RPG9, Regional Planning Guidance for the South East, was issued in 2001. Two chapters dealing with waste and minerals, chapters 10 and 11, were reissued in revised form in 2006. In the revised RPG9 there are targets, both for diversion from landfill in Policy W5 and for recycling and composting in W6. The targets are set out in percentage terms for various years: 2005, 2010, 2015, 2020 and 2025. So far as the recycling targets and composting targets in Policy W6 are concerned, in 2015 the target is 50 per cent. That rises to 55 per cent in 2020 and 60 per cent in 2025. The complaint is that the report referred to Policy W6, it referred to the targets, but it simply looked at compliance with the targets for 2015 and not beyond. It did not refer to the targets for recycling and composting for 2020 and 2025.
40. Before turning to the report, it is helpful to see what RPG9 itself says about the longer term targets. Paragraph 10.176 says:

"The targets in Policy W6 indicate what is considered to be achievable in the short, medium and longer terms."

Paragraph 10.178 makes the point:

"The longer-term targets are more aspirational setting a clear direction for continuing innovation and improvement. It is essential that progress towards recycling and overall recovery targets is monitored and reviewed over the period of the Strategy."

That reference to the targets being aspirational reflects the recommendations in the report of the Panel which examined RPG9 in their report in December 2004. They considered whether or not the targets for the later years should be retained in the regional guidance and eventually concluded that they should, but only as aspirational targets after 2015. That is consistent with the fact that the parent RPG9 gives guidance to 2016, and paragraph 10.121 in the revised Chapter 10 says that the strategy "formally covers the period to 2016, the same as RPG9, but looks forward to provide a longer-term perspective, to inform the South East Plan".

41. The report deals with the issue in paragraphs 8.54 to 8.55:

"8.54. There is concern by objectors, also highlighted by the Environment Agency and others, that this proposal will undermine the recycling/composting of household waste and is, therefore, oversized. It is, therefore, important in relation to this concern, and the targets set for recycling, composting and the recovery of municipal and household waste to be clear on the impact of this facility to ensure that such targets are not compromised. The WLP states in Policy WLP1(c) that in 2015 40 per cent of household waste should be recycled; the role of the ERF is to ensure that residual waste remaining is properly managed (and any further recyclates removed) and that the recovery targets are met or exceeded. Background Paper 1 of the Waste Local Plan predicts for 2015/16 total municipal waste arisings of 438,000 tonnes of which 419,000 tonnes would be household waste. An achievement of 40 per cent recycling and composting of household waste would still leave about 270,000 tonnes requiring treatment, above the maximum theoretical capacity of the proposed plant, at 242,000 tonnes per annum and well above the nominal working capacity of the plant which the applicant indicates will be 85 per cent of maximum capacity, at 210,000 tonnes per annum. The latest evidence base for the Waste and Minerals Core Strategy which will ultimately replace the WLP indicates that low and high boundary scenarios of municipal waste arisings for 2016/17 is a range between 420,000 tonnes and 473,000 tonnes (Information Paper 1 -- Table 2.3). A pattern of continued modest growth gradually declining is predicted although the possible implications of waste avoidance are not yet clear.

8.55. Different assumptions and targets are used in RPG9; however, even if the 2015 target of recycling and composting 50 per cent of municipal waste is utilised, compared to RPG9 figures for annual average tonnage to be managed, there is still predicted to be more waste remaining to be treated than the anticipated average annual throughput for the proposed ERF plant. Both the WLP and RPG9 have targets for the recovery of municipal waste for 2015 (67 per cent and 74 per cent respectively) and recycling and composting alone is not predicted to fulfil these targets. Provision of a recovery facility is, therefore, necessary to achieve these targets."

In a nutshell, the complaint is that when dealing with the concern about "crowding out" recycling/composting because the facility is oversized, there is a reference to the 2015 target in RPG9 -- thus accepting the relevance of the targets -- but there is no reference to the higher targets for 2020 and 2025. It was submitted that there was no explanation for this omission in the report.

42. In my judgment, if one reads the report as a whole, including the annexes, the reasons for the failure to refer to the targets in Policy W6 in RPG9 for 2020 and 2025 are clear. The reasons are, firstly, that the Assistant Director considered that the defendant was facing an immediate and very pressing problem. In paragraph 8.3 of the report, it was stated that the application:

" . . . is submitted at a time when permitted landfill space in the Waste Local Plan area is limited; the remaining landfill sites at Beddingham and Pebsham for non-inert waste are expected to be full at the end of 2008".

In 8.31 it is said:

"The ERF and the WTS at North Quay would help significantly reduce the disposal of untreated waste to landfill sites, at a time when such sites have a very limited life and there is an urgent need to provide replacement facilities; ensure waste is handled higher up the waste hierarchy as part of the integrated waste strategy for the Plan area, which is designed to achieve net self sufficiency. It would contribute to the meeting and exceeding targets for the recovery of municipal waste. This will significantly help eliminate the disposal of untreated waste to land."

43. In this context, it was the clear conclusion of the report that the 2015 targets in the Local Plan and in RPG9 would not be achieved without the facility (see the concluding sentence in paragraph 8.55 of the report). Secondly, so far as the later targets are concerned, Appendix 2 said in response to a very large number of representations, 2,196, that "SE Regional Strategy/RPG9 -- proposal does not accord with the regional strategy which sets higher recycling targets than proposed locally. Other authorities in the region will have to increase recycling and recovery rates to compensate":

"The setting of higher targets in the RSS/RPG9 will be considered in the preparation of the Waste Development Framework documents. The effect of higher recycling rates is considered in the main committee report.

The facility has been designed as part of an integrated waste management infrastructure to achieve increased levels of recycling and recovery, and to complement these activities, not compromise them. The applicant is contractually obliged to increase recycling and composting rates significantly through this and other proposals (household waste recovery sites, waste transfer stations and composting facilities). The ERF will manage only the remaining waste that cannot be recycled or composted."

44. In response to a large number of comments that the proposal would not allow recycling and composting to grow unless overall waste arisings would increase, the response was:

"The applicant is contractually obliged to increase recycling and composting rates significantly via the area's HWRS, a proposed MRF and a proposed composting facility. The facility is designed, including its capacity, to process the residual municipal waste from East Sussex and Brighton and Hove."

And again:

"The applicant is contractually obliged to increase recycling and composting rates significantly. It is not predicted that waste generation will decline in absolute terms. The facility is designed, including its capacity, to process the residual municipal waste from East Sussex Brighton and Hove."

The statement that increased targets would be dealt with through the WDF and that contractual arrangements were in place which would ensure a greater amount of recycling is consistent with the advice that is given in RPG9 paragraphs 10.248 and 10.208 respectively. Paragraph 10.248 states:

"Waste development documents and local development documents will provide the local basis for the provision of additional management capacity and for planning decisions . . . Policy W7 requires waste planning authorities through their development plan documents to provide the development opportunities necessary to deliver the type, size and mixture of facilities required to achieve the waste management targets set out in the policies. Local development documents will reflect the policies proposed in the site allocations and the waste development documents where this is required in two tier areas."

Paragraph 10.208 says:

"There are concerns that incineration plants, which are capital intensive, are inflexible and demand a constant throughput of waste, stifling other forms of recycling and recovery. Energy recovery, recycling and composting need not be mutually exclusive though it is demonstrated in some mainline European countries where extensive use of energy from waste complements high recycling rates. Contracts can and should be formulated to ensure that incineration will not compromise recycling and composting. The aim is for recovery, including recycling, composting and other recovery and diversion methods to 'crowd out' landfill.

Energy recovery should not simply operate on a 'burn it all' principle but should always be part of an integrated approach that allows for the highest levels of recycling and recovery of materials practicable, for example through materials recovery and/or mechanical-biological treatment . . .

45. In my judgment, it is unhelpful to consider the rival arguments as to whether, because of the observation in paragraph 10.121 of Chapter 10 that the future targets are aspirational, they are not part of the development plan. The report was not a thesis on what was or what was not part of the development plan. It was for the assistance of the committee, and the author of the report and the committee would have both been well aware that the defendant had already made its views clear as to the weight that should be given to the aspirational targets for 2020 and 2025 in Chapter 10 of RPG9 (Revised).
46. The higher targets for the later years had been carried over and incorporated into the draft South East Plan and the defendant had lodged an objection to that plan on 22nd June 2006. That objection said:

"The County Council objects to the overall targets for recycling and composting as it has serious doubts about their feasibility. Specific provision should be made for the targets to be tested at the local level as part of waste development frameworks."

The matter is then repeated and in section D2 of the response which asks those suggesting changes to the plan to supply a revised wording the defendant said:

"The South East Plan should be altered to recognise that post-2015 targets should be considered aspirational, recognise that waste development frameworks provide an important opportunity to test the practicability and environmental acceptability, and therefore the deliverability, of the overall approach and the date that has been used, as well as considering any particular local circumstances."

47. In short, it is clear that the defendant would have been well aware that the targets for the later years were higher, because that had been the cause of its objection to the inclusion of those aspirational policies. If one therefore stands back and asks oneself the question: in the circumstances, was it reasonable for the Assistant Director to concentrate on the targets for 2015 in the WDP and RPGG and to conclude that if planning permission was not granted those targets would definitely not be met and that there would not be crowding out of recycling and composting as at 2015, rather than going on to consider whether there was a serious objection to the proposal because granting permission might result in a failure to meet the aspirational targets for 2020 to 2025, to which the defendant itself had lodged an objection, one can see readily why the report did not think it necessary to mention the later targets.
48. It has to be borne in mind that the report came to the clear conclusion that the consequence of not granting planning permission for the application would lead to a certain breach of the targets in both the Local Plan and in policy W6 of RPG9 for 2015. Against that, there has to be set the proposition that the Assistant Director should have brought to the committee's attention the fact that, in avoiding a certain breach of those policies, there was a danger that there might be a breach of the aspirational policies for the later years to which the defendant had objected. One can see why including such a reference, given the defendant's own attitude to the aspirational policies, would have been little more than an exercise in futility. It is right to say that the only possible relevance of the point is the crowding out for future years; that is to say while the ERF would deal with the landfill problem, that would be at the expense of possibly crowding out means of pushing the waste yet further up the hierarchy and preventing it from being dealt with by recycling or composting.
49. There was a dispute between the parties as to what the post-2015 figures in respect of crowding out would demonstrate. It is unnecessary to refer to the rival numerical contentions because they do not feature in the report. The approach of the report is to concentrate exclusively on the 2015 targets in numerical terms, but to state that the higher targets are going to be addressed through the preparation of a waste development framework and to make the point that, in so far as one is seeking to increase recycling and composting, that is addressed through the contractual arrangements that the defendant has entered into.
50. The position on the 2015 figures was abundantly clear. As a matter of common sense, the further ahead one looks (especially if one looks to 2025), the uncertainties are bound to increase. I appreciate that the extent to which they increase is a matter for the judgment of the local planning authority, but in respect of both the targets, which are described in terms as being aspirational, and in terms of the figures for future arisings, common sense suggests that the further ahead one looks the more uncertainties there are. There is a danger of a loss of proportion in judicial review proceedings because, inevitably, attention is focused upon a particular criticism, which, in the present case, was only a small part of a wide-ranging policy picture.
51. Against this background, it can be seen that the complaint that there was no reference to the W6 targets for 2020 and 2025 is academic given that, in the light of the defendant's own attitude to those targets, very little weight indeed would have been given to them by the committee had they been expressly referred to. The report should not be considered in isolation, but in this surrounding context: that in the view of the author of the report, which the committee accepted, the defendant faced an immediate problem. It was clear that the 2015 targets would be breached, both those in the Local Plan and in RPG6 if no action was taken to grant planning permission. So far as the longer term targets in RPG6 were concerned, they were aspirational and the defendant had lodged objections saying that that should be their only status. The defendant was addressing the higher targets through the new development plan process and had contractual arrangements in place which ensured that all that could be recycled was recycled with no upper limit. In all of those circumstances, the report was entitled not to refer to the targets for later years. In the real world, this was a case where landfill was due to run out in a year's time at the time of the report (now less than a year) and there is no prospect that reference to targets which the defendant itself had objected could possibly have made any difference to the outcome of the application.
52. For these reasons this application must fail. I would have granted permission to apply for judicial review in respect of the first and third grounds only, but I do so only to refuse the substantive application.
53. I should mention for the sake of completeness that both the defendant and the interested party raised arguments based on both delay and discretion. In the circumstances it is unnecessary to address those arguments, but the reality of the position in terms of the importance that the defendant attached to addressing the immediate problem because of the fact that the availability of landfill sites is due to run out, is confirmed in the evidence that has been put forward which shows that work has commenced on the proposal. It has commenced because it is regarded by the defendant as being imperative that the proposal is brought into operation as soon as possible. One only has to look at that evidence to be satisfied that the argument that there might be a breach of targets to which the defendant had objected for later years could not, in the real world outside the courtroom, have made any difference to the outcome of this application for planning permission. For those reasons the application is refused.
54. MS LIEVEN: My Lord, in those circumstances on behalf of the defendant I do apply for my costs. If I could hand up a schedule. (Handed). My Lord, what we have done with the costs, if your Lordship starts at the back of the schedule is so far as Mount Cook costs are concerned we have divided them between the Dove and Newhaven case on the one hand and the Friends of the Earth case on the other. So far as the costs of today are concerned, we have put those all into one schedule and would suggest a division of 50 per cent, depending on the amounts your Lordship feels are appropriate to order. My Lord, the three schedules are all separate.
55. MR JUSTICE SULLIVAN: Yes, I see.
56. MS LIEVEN: It is £46,770 associated with the substantive hearing. They are not Mount Cook costs. Then the two schedules behind are both Mount Cook costs and they are divided between the two cases.
57. MR JUSTICE SULLIVAN: I see. Thank you. Who is going to respond?
58. MR HARWOOD: My Lord, I am going to start. My colleagues may well follow. Just to make an observation, my Lord, we have a costs schedule which is £46,000 for the last two days and preparation for that. In addition, there is another £7,500 or so. My Lord, those are substantial sums and when it comes to assessment they should be dealt with by way of detailed assessment rather than summary assessment. Those sums are contentious.
59. MR JUSTICE SULLIVAN: Yes.
60. MR HARWOOD: Turning to matters of principle, first of all, I make two submissions. The first is that the appropriate process is to make no order for costs in these circumstances. The second alternative position, my Lord, is that the costs be capped in terms of offers which were made on behalf of the various claimants. Those offers, having been made back in February, were for the County Council's costs to be capped to £10,000 for each claimant. It would be a maximum of £30,000.
61. MR JUSTICE SULLIVAN: Yes.
62. MR HARWOOD: My Lord, it is appropriate to look at this in the context of the report on Access to Environmental Justice.
63. MR JUSTICE SULLIVAN: I rather guessed that might come up.
64. MR HARWOOD: I have extracts from those matters. My Lord will have seen, no doubt, the decision of Latham LJ --
65. MR JUSTICE SULLIVAN: Yes.
66. MR HARWOOD: The point I make on the Working Party's report is in this case a general one, which is that the report recognises the need for access to environmental justice and those costs might be prohibitively expensive. In the context of Dove 2000, this as my Lord knows is a local residents group who have had to raise funds locally throughout and for the purposes of these proceedings.
67. My first point in suggesting no order or at least capping costs for the public interest I have dealt with. The second point is that this is a rolled up hearing. Whilst the practice on rolled up hearings often is to treat it as a full hearing, it does withdraw the costs protection given by the Practice Direction that would apply in the context of a permission hearing.
68. MR JUSTICE SULLIVAN: Yes.
69. MR HARWOOD: My Lord, the final point I want to make on behalf of Dove 2000 is in terms of the PPC permit point. The point of law which arose on that that the County Council could not rely on an assessment to be quashed has been contested up until this morning. We have lost on the question of how the County Council did in fact consider that due to what I would suggest is a late rescue, or late assistance at least, of the Environment Agency coming out of the woodwork a couple of days ago. My Lord, I suggest that the appropriate order is no order for costs.
70. If my Lord is not with me on that point, can I ask that costs be capped. I will just take my Lord to one letter which was at page 390. That is a letter from Earthlights Solicitors of 20th June 2008 to the County Council discussing questions of costs and ability.
71. MR JUSTICE SULLIVAN: Yes, I have that. Thank you.
72. MR HARWOOD: That made a proposal, at the bottom of page 1 that the County Council accept the costs cap of essentially £10,000 per claimant. The letter of 25th February referred to there is a letter without prejudice as to costs which proposed a £10,000 cap. I can pass it to you if my Lord needed it. So, my Lord, the alternative submission on behalf of Dove is that if my Lord thinks there should be costs it ought to be capped to £10,000 in respect of Dove. That would still be, given aggregate, a large recovery for the County Council in respect of its costs.
73. MR JUSTICE SULLIVAN: Yes. I must say, I will hear what others say in a moment but it is 5 o'clock and whilst I felt some obligation to deal with the substantive issue by today, I do not, I am bound to say, feel quite the same obligation to deal with the minutiae of costs today. It does seem to me it is a substantial claim for costs. It is in an environmental case. I should take account of what the summary report says. It seems to me that the proper course might well be, rather than trying to do it now and indeed rather than trying to suggest people come back to another hearing -- which would simply add more costs to already extensive costs -- is to suggest that the point is to deal with any costs submissions they want to make in writing and I would then be able to deal with them, not exactly at my leisure but at least not at 5 o'clock in the afternoon.
74. I do think there are issues to be addressed in terms of environmental litigation when we do have costs of this order. It is possible that the defendant might take a view as to just how much it would want to claim bearing in mind that offer. I think the fairer course to everyone is to give everyone a chance to have their say in writing. My view, I am bound to say as to the amount of this sum, we have gone into two days and effectively it ought to go for detailed assessment in any event if not agreed. I do not think it is fair to summarily assess a sum of this size. It is not fair on the defendant or the claimants, frankly. That is quite apart from whether there ought to be a cap and whether or not, it being a rolled up hearing, there ought to be a different approach to ordering costs. That is the approach I would be mined to take unless anyone has an objection. Mr Pereira?
75. MR PEREIRA: My Lord, no objection but can we include any costs consequential?
76. MR JUSTICE SULLIVAN: Yes, I think it is sensible. I think maybe I ought to deal with applications for permission to appeal now. I do think costs can be left, frankly. I ought to deal with applications for permission to appeal now so people know where they stand. I appreciate that it is not easy because you have just had a judgment delivered orally, but we have to make the best of it that we can.
77. MR PEREIRA: Shall I start?
78. MR JUSTICE SULLIVAN: Yes.
79. MR PEREIRA: I suspect I know what the answer is going to be, my Lord. I would put it on two bases. First, the approach to the targets, particularly the longer term targets, in the RSS and matters of general importance. The effect of my Lord's judgment is that these targets and the meeting of them can effectively be deferred to a later development plan process, even when they are already in the existing development plan, in this case RPG9. My Lord, that is a matter of general importance. I will not say anything more about it.
80. In terms of my Lord's judgment, there are two matters that come to mind at this stage and I hope I will be forgiven if other things may come to mind later.
81. MR JUSTICE SULLIVAN: I will probably think of other things later as well.
82. MR PEREIRA: The first is this. While my Lord's judgment deals with the question of the targets, in my submission even if it could be inferred that members were aware of the targets, the targets themselves, without an application to the figures -- that is to say the waste -- do not enable the committee to really form a view appropriately on that matter. If they were aware of the targets they would have to have some general awareness of the waste which I say they cannot have.
83. My Lord, secondly, there is reliance placed by your Lordship on the fact that the Council had objected to targets in an emerging plan, that is to say the South East Plan. My Lord, in my submission, that is a different matter to the question of the weight to be attached to the targets in the existing Plan which is part of the development plan. While the Council is entitled to say "We are objecting to the Plan", they are not entitled to say "therefore we are not going to attach material weight to the targets that are in the existing development plan". My Lord, those would be, as they come to my mind at the moment, the two specific points I make.
84. MR JUSTICE SULLIVAN: Thank you. Yes.
85. MR HARWOOD: My Lord, I apply for permission to appeal on the ground 1 PPC point. I make just two points at this stage. First of all, the general importance and interest in the question of dealing with not simply an unlawful decision but more particularly, in the context of this judgment, how matters are considered: whether it is dealt with as a matter of discretion or otherwise in relation to relief about such a potential error. My Lord, that is particularly having in mind the consideration of the Environment Agency's decision and also of grounds on which the PPC permit was quashed and the submission in the case. I suggest those raise matters of importance and principle.
86. The second ground of appeal, my Lord, is in respect of your Lordship's analysis of the Council's consideration, and I would suggest that the reliance on the technical reasoning given in the decision document which then appears in the responses in Appendix 2 was not correctly analysed and that the Council's reliance on that was greater than your Lordship's judgment in the case.
87. MR JUSTICE SULLIVAN: Yes.
88. MR NARDELL: My Lord, I am in a slightly different position. Your Lordship having refused permission on grounds 2 and 5, it is not open to me to apply for permission to appeal.
89. MR JUSTICE SULLIVAN: I think you can appeal against my refusal to grant you permission.
90. MR NARDELL: But I have to ask the Court of Appeal. I do not think your Lordship can grant permission.
91. MR JUSTICE SULLIVAN: Not that I was bursting to.
92. MR NARDELL: Yes. I did not misinterpret. The position is that it may well be that the Town Council are contemplating troubling the Court of Appeal on ground 5 which is a matter of some general importance, although not ground 2, and on the face of it any application to the Court of Appeal would have to be made within seven days rather than 21 for an appellant's notice in relation to those issues on which your Lordship has given permission. My short application is for an extension of time from seven days to 21 days simply so that procedurally any appellant's notice on all the points would go in within 21 days.
93. MR JUSTICE SULLIVAN: Is it 21 days for the others?
94. MR NARDELL: It is, yes. Today is the date of your Lordship's decision. Ordinarily it is 21 days. Under CPR 51 the provision is that where the permission to apply for JR is refused, the party seeking that permission may ask the Court of Appeal and it limits the time to seven days. Where it is a rolled up hearing and permission is refused on some grounds and not others, that would be my application.
95. MR JUSTICE SULLIVAN: Thank you very much. Any responses?
96. MS LIEVEN: Very briefly, my Lord. First of all, on Mr Nardell's application, I strongly resist the extension of time. Your Lordship has obviously seen that this matter is incredibly important to my client and incredibly important we get on with it. The history of this incinerator is littered with litigation and, in my submission, the time has come to put in an appeal or not. In light of Mr Nardell's submission, I would submit to your Lordship that rather than extending the time to 21 days it is actually an appropriate case to reduce the time to seven days for the other two.
97. MR JUSTICE SULLIVAN: For the others, yes?
98. MS LIEVEN: If there are going to be appeals in this case then let us get on with them and get this matter determined. As long as there is any possibility of appeal, my clients are in an incredibly exposed position. So far as the permission to appeal on the other two grounds is concerned, I do not think your Lordship needs to hear from me on that.
99. MR JUSTICE SULLIVAN: No, I was not minded to grant permission to appeal. I think the claimants will have to persuade the Court of Appeal that it is right to grant permission. Whilst I accept that in principle issues of genuine importance could be raised, as so often happens they turn very much on the specific facts of this case. That is why I am refusing permission.
100. MS LIEVEN: So far as the costs are concerned, I entirely support the proposition at this time of day and given the amounts concerned they should be dealt with in writing. It would probably be helpful if your Lordship could set out a timetable for submissions to be made so everyone is clear. Perhaps 14 days?
101. MR JUSTICE SULLIVAN: I am back on Monday for the last four days of term.
102. MS LIEVEN: Well, my Lord, in that case if we make our submissions within seven days or we could make it even shorter if that helped, and then my learned friends have a similar period to respond.
103. MR JUSTICE SULLIVAN: In practice, unless you can get them all in by the end of term you will get no sense for at least a few weeks. I am not going to go away worrying about your costs. I have other things that I would think would be more enjoyable on my vacation. Unless then there is no particular need for a tight timetable, what I will try and do obviously is to get the transcript out by the end of next week so no doubt you will have it by then. The parties will have it and be able to use that as a basis for deciding whether or not they want to appeal.
104. Right, thank you. Can I just check, Mr Holgate, are you going to be participating in the costs battle or are you not going to be participating? I am not encouraging you, but it might be useful to know what your position is?
105. MR HOLGATE: In the light of Bolton, the answer is no.
106. MR JUSTICE SULLIVAN: I am not surprised.
107. MR HOLGATE: I did anticipate that, my Lord. Can I echo what has been said by my learned friend on the question of time for appealing. I make exactly the same submissions. It is very important in the public interest as determined by the local planning authority that any notice of appeal be submitted in the shortest possible timescale. The prospect of incurring extra costs on that matter, if only their own costs, does not seem to deter them and that is a matter of great concern.
108. MR HARWOOD: My Lord, in terms of time for appealing --
109. MR JUSTICE SULLIVAN: Why should you not be cut down to 14 days if I can get you the transcript before the end of term? I think that is the practical question?
110. MR HARWOOD: My Lord, that still then gives us a matter of a couple of days from the receipt of the transcript to put in the grounds.
111. MR JUSTICE SULLIVAN: You can be plotting up until then, can you not?
112. MR HARWOOD: We can plot a bit. With respect to my learned friend, the submissions were frankly unreal. I am not saying that because it is 5.15, but cutting from 21 days to seven. This is a case where until very recently the County Council were saying "Do not do the case this week, hear it a couple of weeks later in August" because of counsel's availability. The County Council have blown hot and cold on this one. First they delay it for a couple of weeks and now my learned friend is saying you should cut the time to appeal. What actually matters on the appeal is that any appeals are put in in a form that reflects what is actually in the judgment. Once we have seen the transcript, had a chance to think about it, we will be able to get an appeal in good order. The Court of Appeal is actually best placed to deal with an application in those circumstances, rather than us all having to rush based on fairly illegible notes.
113. MR JUSTICE SULLIVAN: Thank you very much. Dealing with this in turn, so far as costs are concerned it seems to me that the appropriate course is to deal with any applications for costs and responses by way of written representations. I would obviously urge the parties to see if they can agree as much as possible. My provisional view is that on any basis matters ought to go for detailed assessment and so one would be rather more concerned with the issues of principle; that is to say whether there should be, for example, some form of capping order or either no order for costs at all or some alternative order which reflects the fact that this is a rolled up hearing which has thereby deprived the claimants of any protection they might have under Mount Cook in respect of costs. Those are the sorts of issues which I would expect the parties to address in their submissions. I suggest that submissions be in by the end of term, but I am not undertaking to deal with them before the end of term.
114. So far as permission to appeal is concerned, I refuse permission to appeal. It does seem to me that whilst the issues of principle might be very interesting in theory, in practice they turn very much on the particular factual context here which I have done my best to deal with. Obviously it is up to the claimants if they want to take the matter up to the Court of Appeal.
115. So far as time is concerned, I do not abbreviate the time. I think it is probably more sensible if people have a chance to consider the judgment and formulate their grounds. Mr Nardell, I am going to give you an extension so you have 21 days like the rest of them from today.
116. MR NARDELL: Thank you, my Lord.
117. MR JUSTICE SULLIVAN: Thank you all. Is there anything else? Thank you very much to the court staff for staying late. I am sorry you had to go on a little but it is sensible to get the matter dealt with.