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
		15th December 2008

1. MR JUSTICE COLLINS: This is a claim pursuant to Section 287 of the Town and Country Planning Act 1990, which is preserved, for the purposes of these proceedings, by the 2004 Act -- I need not go into the details of the statutory provisions -- seeking to challenge the decision of an inspector to include a triangle of land, which the claimants own, within the green belt around Kenilworth in Warwickshire.
2. The original green belt designation was established in 1982, following the proper procedure and an inquiry by an inspector. That was a green belt in the West Midlands, which went very much beyond the area around Kenilworth. Every part of the then proposed green belt was capable of being challenged. If there was a challenge, it should have been dealt with by the then inspector. In any event, the decision was that the boundary to this particular part of the green belt around Kenilworth should not include the area of land in question.
3. It constitutes a triangle, the apex of which extends between two railway lines, one now disused and one possibly still in use, towards the town of Kenilworth, which lies to its south, it being to the north of the town. The base of the triangle, is formed by what is now a hedgerow, which used to be, until the Second World War, a small copse known as Elliott's Copse. It used to be the boundary of the Kenilworth Urban District Council, the Urban District Council having ceased to exist as a result of local government reorganisation following the 1972 Act. It also was, I think still is, the parish boundary to Kenilworth itself. It is not simply a line in abstract. There is a sign on the ground, namely the hedgerow, showing where it ran. On either side of the triangle there is now development, which also existed when the line was originally drawn, back in 1982.
4. The claimants rely upon the approach that it is submitted ought to have been adopted by the inspector in deciding whether this particular parcel of land should have been included within the green belt. The relevant guidance is contained in "PPG2: Green Belts", which dates from 1995. The relevant paragraphs in that policy, for the purposes of this claim, are 2.6 and 2.7, under the heading "Defining boundaries". They read as follows:

"2.6 Once the general extent of a Green Belt has been approved it should be altered only in exceptional circumstances. If such an alteration is proposed the Secretary of State will wish to be satisfied that the authority has considered opportunities for development within the urban areas contained by and beyond the Green Belt. Similarly, detailed Green Belt boundaries defined in adopted local plans or earlier approved development plans should be altered only exceptionally. Detailed boundaries should not be altered or development allowed merely because the land has become derelict.

2.7 Where existing local plans are being revised and updated, existing Green Belt boundaries should not be changed unless alterations to the structure plan have been approved, or other exceptional circumstances exist, which necessitate such revision."

5. The reason behind that guidance is that green belt boundaries should be chosen initially on the basis that they are to be permanent, so far as is possible, and that those who have to live on land within or outside such boundaries know where they stand. It is important that the green belt policy is acceptable, in terms of the public, because people will know that it is intended to be a once-and-for-all indication as to where the boundaries should lie. That does not mean it cannot be changed, either for the purposes of inclusion of land originally excluded, or exclusion of land originally included, but there must not only be exceptional circumstances, but those exceptional circumstances must necessitate the change in question. That is not to say that there is a two-stage test; there clearly is not. It is a one-stage approach which can be succinctly stated in that the "change must be necessary in all the circumstances". The word "necessitate" must be given its proper weight.
6. Following the appropriate procedure, the land in question was excluded in 1982. The relevant guidance was then contained in Circular 50/57. Guidance was then given, and it has not really changed since, in any material particular, on how boundaries to green belts should by identified. What was said in paragraph 3 of Circular 50/57 was this:

"3. The one-inch County Map will show the whole area of Green Belt falling within the County, apart from any areas covered by Town Maps. On the outer edges of a Green Belt it should be possible to choose a suitable boundary along roads, streams, belts of trees, or other features which can be readily recognised on the ground and which appear on the one-inch base map.

4. On an inner boundary, however, where the edge of the notation will mark a long-term boundary for development, treatment at a larger scale will be necessary. Where such boundaries fall in Town Map areas no difficulty of scale will arise; but where they do not, authorities are advised to adopt the 1:25,000 (approximately 2½") scale..."

7. It seems to me that it is not material whether one regards this as an inner or an outer boundary. The only distinction drawn there as to the appropriate nature of such a boundary relates to the scale of the map and the possibility of identifying it more precisely, when one is concerned with the boundary for development.
8. It still is desirable, and indeed necessary, to try to find a suitable, identifiable boundary on the ground. It is also material to note that in that circular, and this is still the position, the fact that land, or a particular parcel of land, is not contained in the green belt does not mean that it will necessarily be earmarked for any development. There are constraints that can be applied to so-called "white land", and there are constraints which apply to this particular land. The inspector noted in his report that that was the position. He said:

"14.6.10... At the hearing the District Council accepted that the land is not exposed to a threat of development in this Plan period. Even if excluded from the Green Belt, the absence of an allocation, the greenfield nature of the site, and the District Council's SPD 'Managing Housing Supply would preclude residential development. Moreover, any future development of the site would not bring buildings any closer to Coventry than dwellings that exist in parts of Highland Road and Woodland Road."

Those are the two roads on either side, where there is existing development.

9. The inspector went on:

"But possible longer-term development would fill in a deep indent in the urban boundary. The perception would be of a much greater mass of development rolling down the hillside towards Coventry, presenting a more solid edge to the town. This would result in a serious loss of openness and harm to the rural setting of Kenilworth and give the impression of settlements merging."

If excluded from the green belt, it would not, despite having the present protection from development, have the greater protection that obviously applies to any development within the green belt. For example, even one residence would normally not be permitted within the green belt, let alone any housing development of any extent. It does not look feasible that there should be any other sort of development than residential, if there is to be any sort of development on this particular triangle, but I emphasise that that is not a matter which is material to my decision. It is possible that I am wrong in thinking that that is the reality.]

10. The question of the appropriate boundary, so far as this land is concerned, has been, potentially at least, reconsidered subsequent to the 1982 Plan. There was a reconsideration in 1984, and possibly in 1987 too, although it may be, it is not entirely clear, that the 1984 and 1987 reconsiderations were simply two stages of the same process. At that stage it was the county council that was directly concerned in establishing the correct boundary, but the district council would have had a part to play in that it could have made, and no doubt did make, such representations as it considered appropriate. There is no evidence that there was any representation made against the continued exclusion of this triangle from the green belt during that particular exercise.
11. There were then two subsequent occasions when the matter was capable of reconsideration in the 1990s. On each such occasion, it appears that the district council was minded to include, insofar as it was able, the relevant land within the green belt. It consulted on that basis, but once objections were indicated, it withdrew that particular suggestion. Accordingly, the matter was not pursued at those stages. It was only when one comes to this exercise, which was a question of redefining the green belt, that the district council did positively argue that the triangle in question ought to be included.
12. Its case before the inspector was set out in a proof of evidence prepared on its behalf. What was said, so far as material, is contained in paragraphs 3.1 and 3.2 of its evidence:

"3.1 Paragraph 2.6 of PPG2 state[s] that once the general extent of Green Belt has been approved "it should only be altered in exceptional circumstances". The Council does consider that exceptional reasons exist for amending the Green Belt boundary now. This is on the basis that there is no logic to why the Green Belt boundary was drawn to exclude this land in the first place and that excluded the site from the Green Belt now is an anomaly that should be corrected. This rebuttal proof will show that the relationship between the site and land immediately to the north (which is presently within the Green Belt) is so linked that the role and purpose of this existing Green Belt land would be compromised and prejudiced if this land was not also included within the Green Belt. This site fulfils the purposes of including land within the Green Belt set out in PPG2 and that once in the Green Belt can play a positive role in fulfilling some of the Green Belt objectives.

3.2 As the objector asserts, it is difficult to know precisely why the Green Belt boundary was drawn along the line that it was originally. The objector suggests that this may have been following a refusal of planning permission in 1971 for residential development on the site. Although the Council would agree that there appears to be no hard evidence as to why the Green Belt boundary in this location originally took the route that it did, it is understood that the line chosen was simply one which followed the administrative boundary of the (then) Kenilworth Urban District Council. In 1974, following changes in local government that brought about the creation of Warwick District Council, this boundary became that of Kenilworth Town, where it remains to this day. It is reasonable to assume therefore, that the Green Belt boundary was originally based on an administrative area, rather than being based upon sound planning principles."

13. The claimants had, in their objections to the inclusion of it in the green belt, set out in their statement of evidence reasons why, in their submission, it should not be. The relevant paragraph is paragraph 3.3 of their evidence, which reads:

"With the time that has elapsed it is difficult to know how the Green Belt boundaries in the vicinity of the Land first came to be proposed in the Green Belt Plan but in the light of the reasons for the Planning Refusal by Warwickshire County Council [that is the refusal in 1971 for the residential development] it is perhaps reasonable to assume that the decision to leave the Land out of the designated Green Belt was deliberate. The Land might have been expected to have been included within the Green Belt by the Green Belt Plan; a reasonable assumption to be made is that as, at that time, the Land was unnotated in the Review Town Map for Kenilworth the authorities charged with determining the Green Belt boundaries specifically decided that the Land should be omitted. The rationale for this decision seems likely to have been that the Land was located no further north than the then existing developed boundaries (formed by Woodland Road and Highland Road) of the town of Kenilworth. It should also be noted that the Kenilworth Parish boundary runs along the northern boundary of the Land which would make that boundary an entirely logical boundary for the Green Belt and particularly having regard to the fact that circular 14/84 counselled against Green Belt boundaries being drawn too tightly around existing built-up areas..."

14. The inspector did not have put before him, and I have not had put before me, any evidence as to what led to the decision in 1982. All that one knows is that it was then decided that the boundary should be as was set out in the 1982 Plan. The process involved an inquiry into any objections raised to any part of the proposed green belt.
15. One starts with the clear assumption that someone decided that that was the appropriate boundary at that point. That was officially put forward as the proposed boundary for that particular small part of the green belt. The inspector did not change it. He upheld it. There is no evidence why he upheld that. It may be that there was no objection and he therefore did not consider it directly, because he did not have to consider it directly. It may be that there was an objection, and he did consider it and decided that that was the appropriate boundary. The fact is no one has produced the inspector's decision, assuming it is still able to be produced, and no one has produced any material which shows what was submitted to the inspector in relation to this area of land at the time. Thus, the assumption that has been made, both by the claimants and by the council, is that it was chosen because it was the old UDC administrative boundary.
16. That may be correct, but the fact is that there was on the ground something that could be seen as a boundary. It may be that the decision then taken was that it was an entirely appropriate boundary to adopt, because the triangle in question was an indent into the built-up area. It was built-up on both sides. Therefore, it was in no way an inappropriate boundary to choose. The planning judgment of whoever was responsible, be it an inspector or the relevant individual or individuals concerned in the county council, formed the judgment that that was an appropriate boundary. The difficulty is we do not know for sure what it was that led to that boundary being chosen. Nor do we know for sure that it was simply because it was the previous administrative boundary of the UDC, because the UDC had disappeared in 1974, some 8 years before this particular decision was reached.
17. One must then look to see what the inspector's reasons were for reaching his decision. He sets them out between paragraphs 14.6.4 and 14.6.13. I do not propose to read into the judgment all those paragraphs. In 14.6.4 he describes the land in question and makes the point that it is elevated, with views over open countryside towards Coventry. He then describes the objectors and the objections that they put forward, that there were no exceptional circumstances. He then deals with the previous history and the occasions to which I have already referred, when the matter could have been reconsidered.
18. In 14.6.7 he says this:

"14.6.7 Previous objections have made the point that the District Council has not produced any evidence showing the existence of exceptional circumstances. The current situation on the ground is exactly the same as has appertained throughout Mr and Mrs Hague's ownership of the land, dating from 1957. In the objectors' view, the admission by the planning authority that the proposal is minor in nature implies that there are no exceptional circumstances. Issues as to the suitability of the revised Green Belt boundary only become relevant once the District Council has demonstrated such circumstances. In fact, the existing Green Belt boundary established as long ago as 1982 has proved to be robust. Moreover, policy with regard to the permanence of Green Belt boundaries has fundamentally remained the same through Circular 14/84 into PPG2 in both its 1995 and 1998 guises.

14.6.8. Looking first at the question of exceptional circumstances, the following points were decided in the Carpets of Worth case [Carpets of Worth Ltd and Wyre Forest District Council [1991] 2 PLR 84]. Firstly, the boundary of existing Green Belts in structure plans should not be altered, either way, except in exceptional circumstances, nor should adopted local plans be treated any differently. Secondly, the Court rejected any suggestion that the process of producing a new local plan was in itself an exceptional circumstance. Thirdly, because it directly prejudices landowners an extension to the Green Belt should not be brought into effect unless it can be justified directly for those purposes for which the Green Belt was designated. Fourthly, once a Green Belt has been established it must require exceptional circumstances to justify an alteration. The objections in respect of land at Highland Road/Woodland Road need to be examined in light of these considerations."

19. Pausing there, it is not suggested that the inspector's summary of the points made in the Carpets of Worth case is incorrect. These are the matters that had to be taken into account. The only importance is that the case was decided in 1991, which antedated PPG2, and it is PPG2 which introduced the necessity test, which clearly goes somewhat further than exceptional circumstances on their own. At the very least, it underlines the importance of the requirement of exceptional circumstances being established.
20. 14.6.9 is perhaps the crucial paragraph in the inspector's decision:

"14.6.9 I am satisfied that exceptional circumstances do exist for amending the Green Belt boundary in this location and that the District Council does not rely upon general planning concepts. There is no logic to the present boundary. It is an anomaly that should be corrected, and the nettle should be grasped now. I am in no doubt that if the Green Belt was being established around Kenilworth for the first time, this parcel of land would be included. The need to apply a consistent approach to Green Belt designation is, I feel, an exceptional circumstance. I agree with the District Council that the site has a clear visual and functional relationship with open, undeveloped land to the north. In my opinion, this amendment is not of such significance as to constitute a strategic alteration that should only be made through a review of the Regional Spatial Strategy. The reason why this land was originally excluded from the Green Belt is obscure. However, it is not unreasonable to conclude that it was based upon a purely administrative convenience in following the old Urban District boundary. That position has changed with revision of the local authority boundary. In terms of the Copas case [Copas v Royal Borough of Windsor and Maidenhead [2002] 1 P&CR 199], I consider that the fundamental assumption which caused the land initially to be excluded from the Green Belt has been clearly and permanently falsified by this later event. Its continuing exclusion from the Green Belt can, I believe, be properly characterised as an incongruous anomaly. If the correction of a past mistake is not regarded as an exceptional circumstance, then there would be no opportunity through PPG2 to put matters right. The preparation of a new Warwick District Local Plan is not in itself an exceptional circumstance. But it does provide the vehicle for addressing an inconsistency that has, in my view, prevailed for far too long and has unreasonably raised expectations as to future development potential. This leads on to the next consideration."

21. The next consideration which he deals with in the following paragraph is whether the land fulfils the green belt purposes. He decided that it did. There is no need for me to read more than I have from that paragraph into the judgment, since there is no issue but that the inspector was entitled to conclude that it did fulfil the requirements of green belt policy. It is rightly accepted by Mr Purchas that had this been a case of considering whether, for the first time, the green belt should include this particular triangle of land, it would have been open to an inspector to have decided that it should be included, although Mr Purchas contends that it would equally have been open to an inspector to conclude that it should not have been included and each decision would have been a rational decision on the material that existed.
22. The inspector continues in 14.6.11 to indicate that incorporation was strongly supported by local people, including the Kenilworth Society and the Kenilworth Town Council, the Council for the Protection of Rural England (Warwickshire Branch) and the Crackley Residents' Association. Crackley is a nearby development which is now part of Kenilworth. He says:

"14.6.11... While those representations do not amount to exceptional circumstances for altering the Green Belt boundary, they do demonstrate the strength of local feeling as to the need for protection of this sensitive tract of land."

23. The inspector concludes in 14.6.13:

"Notwithstanding the alternative proposals outlined above [that is, it should not, even if outside the green belt, be shown as being within the rural area, and thus subject to rural area policies], I conclude that the Green Belt boundary at Highland Road/Woodland Road should be amended to incorporate the objection site which is clearly rural rather than urban in character."

24. The inspector's approach in 14.6.9 is based, to a considerable extent, upon the Copas case, so it is necessary to refer to it to see what principles should be derived from it. It was concerned with a development plan, and whether particular area of land should be included within the green belt. The facts, insofar as they are material, were that that in 1991 planning permission for residential development on the site in question had been refused on the basis that the quality of openness contributed by the site would be lost and the development would create a far less satisfactory setting for listed buildings in the vicinity and the views from the site would be seriously obstructed by the development and the "congruous foreground... of pasturage would disappear".
25. Following that, the borough included, in the deposit draft of their local plan, the site within the green belt, stating that, given the appeal decision and other considerations, it seemed logical so to include it. The appeal was against the decision of Mr Lockhart-Mummery QC, sitting as a Deputy Judge in this court, which dismissed the application to quash the relevant decision.
26. The inspector considered whether there were "exceptional circumstances", as he put it, which dictated that the green belt boundary should be revised. He decided that there were, on the basis that the site should be retained in substantially its present form. Therefore, there were exceptional circumstances necessitating a revision of the green belt boundary. He said:

"2.48... I have not reached that conclusion lightly because I recognise the need for such boundaries to be permanent wherever possible. However, the most recent appeal decision justifies a very different perception of the site than that which prevailed when the present boundary was set. It also means, in my view, that the continued omission of the site from the Green Belt would be an incongruous anomaly."

It is the same phrase used as was used by the inspector in this case.

27. The court cited the relevant paragraphs of PPG2. Through Simon Brown LJ, who gave the only reasoned judgment, it referred back to what Purchas LJ had said in the Carpets of Worth case, and made the point that the inspector had the relevant considerations in mind, as did the inspector in this case. He rejected the submission made by counsel on behalf of the appellant that there was a two-stage test and decided that in reality the test was one of necessity: exceptional circumstances which necessitated a change, being effectively an indication that there must be that necessity established, albeit there had to be an exceptional circumstance as well. If there was nothing that could conceivably be regarded as an exceptional circumstance, the conclusion would be wrong, but one could equally say that if there were no exceptional circumstances, there could be no necessity. So the two clearly run together.
28. Then, on the facts, the court decided, on balance, that the 1991 planning decision in that case could not of itself create the necessity for the green belt provision. At paragraphs 39 and 40 of his judgment on page 212 Simon Brown LJ said this:

"39. It must, of course, be recognised that PPGs have no formal statutory force and are not to be construed and applied as if they had. The only statutory obligation on the Local Planning Authority (and in the present case, of course, on the Inspector) is to have regard to them. All this too was pointed out by Purchas LJ in the Carpets of Worth case (at p.88). That said, the Guidance must be given some reasonable meaning and be properly understood by those charged with forming the relevant planning judgment.

40. I would hold that the requisite necessity in a PPG 2 paragraph 2.7 case like the present - where the revision proposed is to increase the Green Belt - cannot be adjudged to arise unless some fundamental assumption which caused the land initially to be excluded from the Green Belt is thereafter clearly and permanently falsified by a later event. Only then could the continuing exclusion of the land from the Green Belt properly be characterised as 'an incongruous anomaly'."

29. That language is used by the inspector in 14.6.9 of his determination. The problem is that if one takes those words literally, there has been no later event which has clearly and permanently falsified the original decision, because the UDC, whose boundary was this particular hedgerow, had ceased to exist in 1974. Clearly Simon Brown LJ was referring to something that occurred after the decision to exclude the relevant land from the green belt. It seems to me that one has to read what Simon Brown LJ said, not in a purely literal way. It does not have to be some event which one would expect to mean something that is changed by subsequent action of some sort or another to justify a decision to include what had been excluded, or indeed to exclude what had been included.
30. It has been submitted by Mr Dove, and I agree with him, that establishing that the original exclusion was by error should be sufficient, because otherwise a clear error would be perpetuated, and that is not what is required, or should be required, by the relevant policy. Thus, if one reads later events as including a later establishment of a previous error, then it seems to me that the approach suggested by Simon Brown LJ covers all eventualities. What Mr Dove submits is that here the inspector reached a conclusion, which he was entitled to reach, that there was no sensible or logical reason why this particular boundary should have been chosen. If one looks at the site in question, and one applies the policies which determine whether land should be within the green belt, they all point in favour of including it, because it otherwise breaks the openness and so on. The problem is that the assumption has to be made that the original decision was one which could only be put down to choosing a boundary for no reason other than that it was administrative convenience in that it was the old UDC boundary.
31. In my view, there is no evidence which supports that as being the only reason why that could have been chosen. I have already referred to the evidence produced on behalf of the claimants, and that gives possible reasons why that choice should have been regarded as the appropriate boundary. The fact that it was, if this is the position, chosen because, among other things, it was the old UDC boundary, does not mean that it was an incongruous anomaly to have picked it out as the correct boundary. There were other reasons why it should have been regarded as appropriate, not least because there was development on either side of the triangle.
32. Thus, when one looks at the map and one sees what surrounds, and particularly having regard to the policy which stated that one should not necessarily be too rigid in drawing the line around built-up areas, it cannot be said that the judgment of whoever formed that judgment earlier, whether it be an inspector or those concerned in the county council, was a judgment which could not reasonably have been reached. True it is that this inspector clearly took the view that it ought to be included within the green belt, but that is not the test for deciding whether there are exceptional circumstances which necessitate change. Mr Dove accepts that if a decision was originally made, based on a judgment then formed, that was a rational judgment, then the fact that a subsequent inspector forms a different view, however positively that view is formed, cannot of itself constitute an exceptional circumstance which necessitates the change and so the inclusion in the green belt.
33. Mr Dove submits that, there being no evidence, the inspector's assumption, and in my judgment it is no more than an assumption, that there was no good reason other than the use of the old boundary is one that he was entitled to reach. There was no evidence to contradict it. It seems to me to be consistent with the necessity test and the approach of Simon Brown LJ that there must be some evidence, some material, which shows that a mistake was made originally. It is surely for the council, in circumstances such as this, to produce something which goes to show an error. The fact that a subsequent inspector forms a different judgment cannot establish that such an error existed.
34. In my view, in this case there is no proper basis for the conclusion that the inspector reached. The way he expresses it is itself erroneous, because there has been no later event to falsify the original decision. Equally, there is no positive evidence that the fundamental assumption that caused the land to be excluded was that it was based upon a purely administrative convenience. It is difficult to see what administrative convenience there would have been when the boundary had disappeared. The boundary itself is identifiable by the hedgerow in question and is a perfectly understandable and appropriate boundary to have chosen. It is far from clear to me that a previous inspector would have acted irrationally in judging that this was indeed the appropriate boundary for the green belt at this particular juncture.
35. In those circumstances, I am satisfied that this claim succeeds. The result will be that the inclusion of this triangle of land in the green belt will be quashed.
36. MR PURCHAS: I am very grateful to your Lordship. Can I just mention two small matters on the judgment, if it is helpful, for correction. They are both microscopically small. If your Lordship would just categorise PPG2 as the 1995 PPG2, because there was an earlier one.
37. MR JUSTICE COLLINS: I thought I had.
38. MR PURCHAS: Probably your Lordship did, in which case I ignored it.
39. MR JUSTICE COLLINS: There was a later 1998 provision, but that is not material.
40. MR PURCHAS: That is nothing to do with it, I quite agree. It is simply to make sure the 1988 PPG2 was the one considered in Carpets of Worth.
41. MR JUSTICE COLLINS: If I did not say "1995" -- I thought I had -- certainly I will make sure that goes in the transcript.
42. MR PURCHAS: The only other point, a minor point, is under the transitional provisions the inspector still recommends, albeit the authority is bound to adopt in accordance with the recommendation. I just make that point.
43. MR JUSTICE COLLINS: Yes, I did not bother to go into the details of that. It did not seem to be necessary.
44. MR PURCHAS: Can I clarify the position on the witness statement of Mr Clarke. I am not sure if your Lordship actually made a decision on that.
45. MR JUSTICE COLLINS: I should perhaps deal with that. Let me add an addendum so I can deal with that.
46. As I have already indicated, there was nothing before the inspector to show how the boundary had been fixed in 1982. The defendant has produced, at the end of last month, a statement from a Mr Clarke, who was (although he is not now) the local plans manager of Warwick District Council. In that statement, he says this:

"4. I have undertaken research in relation to any earlier consideration by an inspector of any proposal to include this land within the Green Belt. Having done so, I can confirm that this is the first occasion on which an independent inspector had the opportunity to consider whether or not this land should be included within the Green Belt, and therefore the first time it had been subjected to independent scrutiny. In particular, it was not debated as part of the inspector's consideration of the Green Belt Local (Subject) Plan for Warwickshire or any subsequent plan until 2006."

47. That has a number of problems. First, it was not produced by the defendants until very late in the day, this claim having been lodged in October 2007. As far as the rules are concerned, this being a Part 8 claim, any evidence is required to be served at the same time as an acknowledgment of service, although there is power in the court to extend time.
48. Mr Dove has explained to me that he advised originally on 20th February 2008. Following his advice, he drafted a defence, which was also served at the same time as Mr Clarke's statement, and he advised that a statement be obtained from whoever was responsible, having made such inquiries as he could to discover what the true position was. It was as a result of those that this statement was made, sometime in the summer of this year. I do not have the precise date because unfortunately the statement itself is undated. Whoever was then dealing with it on behalf of the defendant council, and I emphasise it is not the present solicitors, failed to do what he should have done and serve both the statement and the defence drafted by Mr Dove. So it was it came very much at the last moment.
49. Furthermore, with the greatest respect to Mr Clarke and those responsible, paragraph 4, which I have read, is wholly inadequate. It does not indicate what he has discovered and what he is basing his conclusions upon. All he says is he has undertaken research and, having done so, he can confirm that this was the first occasion et cetera. If that sort of evidence is to be given, it must be based upon some material and that material clearly should be disclosed and produced. If there was no material -- and one rather suspects there was no material, because I venture to believe that at least there would have been an attempt to produce it and rely upon it -- then Mr Clarke's observations are worth very little, because all he can say is, "I did not find anything". That may be the true position.
50. It follows that when he says that he can confirm that this is the first occasion on which an independent inspector had the opportunity to consider et cetera, that cannot be right, because the inspector previously had the opportunity. Whether that opportunity was taken up is another matter, but the opportunity clearly existed. Furthermore, to say it was not debated as part of the inspector's consideration, unless there is positive evidence that shows that to be the true position, is something which he cannot say. He certainly has not produced any material to back that up.
51. In all circumstances, it seems to me that Mr Clarke's statement adds nothing. In any event, it is way out of time. If it had added anything, I would have doubted whether it would have been appropriate to grant leave for it to be admitted and relied on, but it frankly does not matter whether it is admitted or not, because it adds absolutely nothing.
52. MR PURCHAS: My Lord, I am very grateful for that. I will ask for an order. In my skeleton argument, I set out a form of order. It may be your Lordship will prefer a minute to be drawn up and filed.
53. MR JUSTICE COLLINS: Let me just remind myself.
54. MR PURCHAS: It is paragraph 60.
55. MR JUSTICE COLLINS: Yes, it may be convenient for you, between you, to decide what is the precise --
56. MR PURCHAS: In a sense it is the defendant's plan.
57. MR JUSTICE COLLINS: Yes, one wants to identify it exactly and not too much and not too little.
58. MR PURCHAS: Absolutely. I think we would be content with that. My Lord, I would also ask for an order for costs. There has been exchange of schedules.
59. MR JUSTICE COLLINS: Yes, I have them somewhere. Let me just see.
60. MR PURCHAS: I do not know the extent to which it is controversial.
61. MR JUSTICE COLLINS: Yours amount to £46,000-odd. I am always interested to see what the other side is. It is rather less.
62. MR PURCHAS: What I am instructed to say is that we would be content, if it is convenient, to agree an order that costs be taxed if not agreed.
63. MR JUSTICE COLLINS: I am bound to say that when you have costs at this sort of level, I think it is very difficult for any judge, certainly difficult for me, to make any summary order, unless there is at least some element of common ground.
64. MR DOVE: My Lord, my instructions are that there are -- I do not want to go through them, but there are a number of points that we wish to explore. So it would be best, in my submission, if we asked for you to order detailed assessment. That does not preclude us settling our differences.
65. MR JUSTICE COLLINS: The normal order is: to be the subject of detailed assessment if not agreed.
66. MR DOVE: We will try and settle our differences.
67. MR PURCHAS: Agreed.
68. MR DOVE: If we cannot, we do not need to bother you again.]
69. MR JUSTICE COLLINS: Yes.
70. MR DOVE: My Lord, in relation to relief, the position is rather easier than the last time you and I had to deal with issues and relief and a local plan.
71. MR JUSTICE COLLINS: Which was that one?
72. MR DOVE: Herefordshire, do you recall?
73. MR JUSTICE COLLINS: Oh, Derwent (?).
74. MR DOVE: Yes, which was a rather more complex case. It seems to me here it is relatively straightforward.
75. MR JUSTICE COLLINS: You thought I got that one wrong, too.
76. MR DOVE: I have not come to that yet. In relation to this, it would help, I suspect, if we had a plan attached to the order. That would seem to me to be the most appropriate way of dealing with it.
77. MR JUSTICE COLLINS: I am perfectly happy if you, between you, decide which is the most sensible way of incorporating the right order, because one wants to be exact.
78. MR DOVE: Indeed, and in reality what the relief should be is to say that the green belt on the attached plan is quashed, or words to that effect. Rather than trying some verbal description, it seems to me that, given the only issue is where notation washes --
79. MR JUSTICE COLLINS: You can identify the site.
80. MR DOVE: Yes.
81. MR JUSTICE COLLINS: An ex-plan can have a big letter, whatever it is, on the --
82. MR PURCHAS: We have done it before. We just draw up a new proposals map, showing white where at present it is green. Then paragraph 9.10 is one sentence.
83. MR JUSTICE COLLINS: You go back to page 224 or whatever it is.
84. MR PURCHAS: Almost 224. Whatever it is, paragraph 9.10 is that passage which refers to it being included in the green belt.
85. MR JUSTICE COLLINS: I am sure you are perfectly capable, between you, of reaching --
86. MR DOVE: I have no doubt we can agree that.
87. The final matter, my Lord, is I am going to ask for permission to appeal on the basis that the issues that have been raised in the case, so far as the assumptions that your Lordship has dwelt upon in giving judgment, that the inspector ought to have taken into account, and the issues of public law which I raise in relation to the (inaudible). In those circumstances, I ask for permission to take the matter further.
88. MR JUSTICE COLLINS: Mr Dove, I think I have been applying the law as set out in the Copas case -- in fact, I have modified it slightly, I suppose, but in your favour -- and I do not see that there is any point of principle that arises in this case; it is a matter of application to the facts. If you want to take it further, you will have to persuade the Court of Appeal.
89. MR DOVE: Very well.
90. MR JUSTICE COLLINS: Incidentally, do you want some more time, since we are almost on Christmas? Normally you have 21 days, but I cannot remember whether time runs over the Christmas period.
91. MR DOVE: I think time starts to run once we have the transcript of your Lordship's judgment.
92. MR JUSTICE COLLINS: Actually, it starts on the order, technically.
93. MR DOVE: My Lord, bearing in mind the Christmas period, it would be helpful to have a little more time to take instructions.
94. MR JUSTICE COLLINS: I do not think it is unreasonable.
95. MR PURCHAS: We would not object.
96. MR JUSTICE COLLINS: 21 days would take us until 3 weeks from today. About 4th or 5th January, is it not? If I give you until Friday of the first week of term. That is the 17th.
97. MR DOVE: That would more than adequate for us to take instructions.
98. MR JUSTICE COLLINS: Is that all right, Mr Purchas?
99. MR PURCHAS: Yes.
100. MR JUSTICE COLLINS: You should have the transcript before then.
101. MR DOVE: That would be very helpful.
102. MR JUSTICE COLLINS: Although I notice you obviously have had a good note of it.
103. MR DOVE: My note-taking is notoriously poor, but I am sure those behind me will have a wonderful note of it. My Lord, you said some 17th. Those behind me just checked the calendar. It is 16th January would be the Friday.
104. MR JUSTICE COLLINS: 4.00 pm on 16th January.
105. Thank you both.