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
		19th March 2008

1. MR JUSTICE BURTON: Planning permission was granted to itself by the Surrey County Council ("the defendant") in respect of the development of an Outdoor Education Centre ("OEC"), primarily for young people to be enabled to enjoy the experience of outdoor country activities, at High Ashurst, Headley lane, Mickleham in Surrey, after a committee meeting on 9th May 2007, by a decision of 19th June 2007. The present OEC has been in existence for many years. It consists of a headquarters building, two residential buildings for staff, toilet blocks, ancillary offices and a climbing wall. It is in the Green Belt and in the Surrey Hills Area of Outstanding Natural Beauty and it borders Headley Heath, which is a site of Special Scientific Interest.
2. The permission was to demolish the existing buildings and construct a new headquarters building and six new accommodation blocks and other ancillary buildings. The built-up development would be five times the size of the old. The total gross floor space of the existing buildings to be demolished amounts to 355 square metres and the total gross floor space of new building would be 1,712 square metres.
3. The grant, which was conditional, as I shall describe, is now challenged by a neighbour of the OEC to its immediate south, Mr Wates ("the claimant"), for whom Mr Clarkson QC and Mr Blundell have appeared, while the defendant Council has been represented by Mr Christiaan Zwart.
4. There is statutory procedure for a council to grant planning permission to itself. It is governed by section 316 of the Planning Act 1990 and the Town and Country Planning General Regulations 1992. The Secretary of State may call in such a planning application for his own deliberation under section 77 of the 1990 Act. She did not do so in this case, although invited to do so by the claimant. In considering planning applications, the Local Planning Authority must have regard to the matters referred to in section 70(2) of the 1990 Act, which reads:

"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

The development plan in this case includes the Mole Valley District Local Plan.

5. Naturally, a number of planning policies apply to the question of the grant of permission for this development in a Green Belt. This development, it is common ground, is properly described as inappropriate development within a Green Belt, notwithstanding that the OEC already exists. The most significant provision for the purposes of the hearing before me is PPG2, that is Planning Policy Guidance 2: Green Belts, issued on 5th May 2006, at paragraph 3.1 and 3.2, which read as follows, under the heading "Presumption against inappropriate development":

"3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances...

3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."

6. There is no dispute between the parties about the relevant authorities, most materially Buckland and Boswell v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 524 (Admin), Doncaster Metropolitan Borough Council v Secretary of State for the Environment, Transport and the Regions [2002] JPL 1509 and R(on the application of Chelmsford Borough Council) v First Secretary of State [2003] EWHC 2978 (Admin). The following principles relevant to this case can be spelt out in those authorities. (1) Very special circumstances are not a closed category and are not capable of definition or limitation; Chelmsford, paragraph 53. (2) There is a distinct qualitative difference between other material considerations and very special circumstances; Doncaster, paragraph 68; Buckland and Boswell at paragraph 73 to 75. Unless there are relevant factors which fall within the development plan (and in this case they will not, because it is conceded that the development is inappropriate development in a Green Belt which is outside the development plan), they are bound to be "other material considerations"; but such other material considerations must amount to very special circumstances before they can justify an inappropriate development in the Green Belt. (3) The decision-maker's opinion that a matter amounts or matters amount to very special circumstances is not determinative or, put another way, the fact that the decision-maker concludes that a factor amounts to very special circumstances does not make it very special circumstances. Such opinion or conclusion can be challenged on Wednesbury reasonableness grounds; Chelmsford paragraph 54 to 56.
7. The giving of a decision by a council is governed by Article 22 of the Town and Country Planning (General Development Procedure) Order 1995. The relevant provision for our purposes relating to the grant, as here, of conditional permission is Article 22(1)(b):

"(1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserve matters and...

(b) planning permission is granted subject to conditions, the notice shall:-

(i) include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and

(ii) shall state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision."

8. There is in this case no issue in respect of the giving of reasons for the conditions that were imposed.
9. Although there was some argument interlocutorily about the requirement of this article for the giving of a summary of the policies relevant to the decision to grant permission, that has not been pursued before me, after certain discouraging noises were made by Collins J on the oral grant of permission. The issue which remained before me was only as to the sufficiency, or the relevance, of the giving of the summary of the Council's reasons for the grant under Article 22(1)(b)(i).
10. There are three relevant authorities for the purpose of considering Article 22. The first is R (on the application of Spencer and Linda Chisnell) v London Borough of Richmond upon Thames [2005] EWHC 134 (Admin). The second is R (on the application of Ling (Bridlington) Ltd) v East Riding of Yorkshire Council JPL [2007] 396, and the third is R(on the application of Mid-Counties Co-operative Ltd) v Forest of Dean District Council [2007] EWHC 1714 (Admin).
11. The decision was, as I have indicated, for the grant of permission subject to conditions. At this hearing, only six of those conditions were relevant for my consideration, conditions 3, 4, 5, 6 and 11, which I shall call "the access conditions", and condition 14, which is what one might call "the user condition". They read as follows:

"3. Prior to the construction of the development hereby permitted, the applicant shall submit a 'traffic management plan', to incorporate the Construction Management Principles' dated 17th January 2007 and other relevant matters, to manage the deliveries and other construction traffic to the site in order to minimise the impact of the construction phase, to be approved and implemented to the satisfaction of the County Planning Authority.

4. The development hereby permitted shall not be occupied until repairs, resurfacing and making good Headley Heath Approach and the section of bridleway 491 used by construction traffic have been carried out, following agreement with the Ashurst and Headley Heath Roads Association, to the satisfaction of the County Planning Authority.

5. Before the development hereby permitted is begun a schedule of repair works to Headley Heath Approach and that section of bridleway 491 to be used by construction traffic shall be submitted to the County Planning Authority for approval in writing. The works approved shall be implemented in advance of the commencement of construction.

6. Prior to the occupation of the development hereby permitted, the application shall submit a travel plan, based on the 'Traffic Management Principles' dated 17th January 2007 and any other relevant matters, to promote access to the site by non-car modes and to prevent access to the site by coach, to be agreed and implemented to the satisfaction of the County Planning Authority.

11. There shall be no more than 300 visitors on the site at any one time and numbers of visitors shall be recorded and kept available for inspection by the County Planning Authority.

14. The development hereby permitted shall be used by schools, youth groups and similar like groups and at no time shall be used by corporate groups."

As is required by Article 22, reasons were given for the imposition of those conditions.

12. The reasons for the grant of the permission are set out in the decision letter as follows, under the heading "Summary of Reasons for the Grant of Planning Permission" (and I propose to set them out with an added capital letter in front of the five main reasons given, which does not appear in the original decision letter, for ease of reference):

"The development does not accord with development plan policies controlling the types of development normally permitted in the Green Belt. The following other material considerations outweigh these policy considerations.

A - established Outdoor Education Centre (OEC) site which has been providing a range of outdoor activities for a long time;

B - this is the only County Council owned site that is suitable to provide the range of activities on offer;

C - the need to replace and update the poor built facilities with modern up-to-date accommodation to meet with expectations and cater for people with disabilities;

D - the opportunity to reduce CO2 emissions by reducing travel distances by Surrey groups to modern out-of-County locations;

E - [it] does not have a significant impact on the openness of the Green Belt or landscape character or countryside."

The reasons then continue:

"It is considered that the development will provide the following benefits:

a) ensures that the Centre continues as an important educational and recreational resource for the youth of Surrey;

b) high quality accommodation to meet present day requirements and expectations of visitors;

c) opportunity to reduce CO2 emissions by reducing travel to out-of-County Centres."

13. There were five issues raised by the claimant in his judicial review application, but only four have been pursued. There has been some argument as to the extent of the permission granted by Collins J, but all four grounds have in the event been argued out before me. The first is in fact put in two ways, and is in respect of the reasons for decision. Mr Clarkson QC relies on the requirements of PPG2, paragraph 3.2 and the Local Plan, to which I have already referred, the Mole Valley District Local Plan, whose policy is almost identical to that of PPG2, but which I set out as follows, under the heading "Development Policy in the Green Belt Outside Villages":

"4.13. It is essential that the Green Belt should endure for the foreseeable future. PPG2 on Green Belts indicates there is a general presumption against inappropriate development in the Green Belt and such development should not be approved except in very special circumstances. The Council wishes to ensure that the open character of the Green Belt in Mole Valley is not eroded and that development does not conflict with the purposes of the Green Belt.

Then policy ENV2 records that there will be a presumption against inappropriate development.

14. As I have indicated, it is common ground that this was inappropriate development in a Green Belt, and so the defendant council had to be satisfied that there were very special circumstances. Mr Clarkson's first submission is that the defendant did not in fact conclude that there were very special circumstances, and hence could not grant permission. There is no reference to 'very special circumstances' in the decision letter or the reasons set out in it, as I have already recited. There is only reference to 'other material considerations', which are not enough; see the authorities to which I have already referred. As Article 22 requires the reasons to be given in the decision letter, so the grant must fail, and Mr Clarkson refers to the three recent authorities which I have earlier mentioned and to which I shall now turn.
15. Collins J in his judgment in Forest of Dean helpfully recites the earlier judgment of Sir Michael Harrison in Ling, and therefore I do not need to read the latter judgment except by way of extract within the judgment of Collins J. Paragraphs 27 to 29 of Collins J's judgment read as follows:

"27. In submitting that the other parties were wrong to have accepted that the reasons were defective, Mr Clarkson has placed particular reliance on a decision of Sir Michael Harrison, R(Ling (Bridlington) Ltd) v East Riding of Yorkshire [2006] EWHC 1604 (Admin). In paragraphs 47 to 50 of his judgment, Sir Michael set out four factors which he considered to be relevant in considering the adequacy of reasons for the grant of permission. He said this:-

'47. In considering the adequacy of reasons for the grant of permission there are a number of factors which seem to me to be relevant. The first is the difference in the language of the statutory requirement relating to reasons for the grant of planning permission compared to that relating to the reasons for refusal of planning permission. In the case of a refusal, the notice has to state clearly and precisely the full reasons for the refusal, whereas in the case of a grant the notice only has to include a summary of the reasons for the grant. The difference is stark and significant. It is for that reason that I reject the claimants' contention that the standard of reasons for a grant of permission should be the same as the standard of reasons for the refusal of permission.

48. Secondly, the statutory language requires a summary of the reasons for the grant of permission. It does not require a summary of the reasons for rejecting objections to the grant of permission.

49. Thirdly, a summary of reasons does not require a summary of reasons for reasons. In other words, it can be shortly stated in appropriate cases.

50. Fourthly, the adequacy of reasons for the grant of permission will depend on the circumstances of each case. The officer's report to committee will be a relevant consideration. If the officer's report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer's recommendation. In the latter case, a short summary may well be appropriate.'

The reasons in that case read:-

'The proposal has been considered against the policies below and it is considered that the scheme accords with the policies, and there are no material considerations which indicate a decision should be otherwise.'

He concluded that those reasons were 'as short as they could be' and that 'anything less would be inappropriate'. But they did, he said, 'reflect the stated conclusion in the officer's report' and 'anything further could be said to be giving a summary of reasons for reasons'. He was persuaded that they were adequate but he cautioned LPAs against trotting out a standard formula: see paragraph 56.

28. As I said in Tratt, I have some difficulty with the first two of Sir Michael's four factors in particular. The purpose of giving reasons is the same whether they be full or summary and are needed to enable any interested person, whether applicant or objector, to see whether there might be grounds to challenge the decision. If in stating that the standard of reasons should be different for a grant than for a refusal all that Sir Michael was doing was reflecting the difference between summary and full, there is no problem. But if he was intending to indicate that there was a difference in the purpose of giving reasons, and so what they should deal with I must respectfully disagree with him. Since I am clear that the reasons should cover the same matters whether full or summary, I do not accept Sir Michael's second factor. If there have been objections which raise one of the main issues in considering the application, the reasons for rejecting them will equally be reasons for granting permission. I do not think the distinction drawn by Sir Michael in paragraph 48 is a true distinction. Thus if for example a main objection to a development is its allegedly damaging effect on visual amenity, it would be appropriate to state that the LPA was satisfied that its effect would not be detrimental to visual amenity because it would be adequately screened or sited so as not to be intrusive or whatever dealt with the particular objection.

29. Whether or not I would have agreed with Sir Michael about the adequacy of the reasons in the Ling case is nothing to the point. I am entirely satisfied that the reasons given in the permissions in this case were inadequate. Mr Clarkson submits that the claimants were informed readers, were aware of the officer's reports and so would know why the decision had been reached. That does not save inadequate reasons. Article 22(1) requires the reasons to be included in the notice and should not require the interested party (who may not have been aware of the application as an objector) to have to search the background material including officer's reports to understand why permission was granted and in particular whether there were any issues raised against the application. No doubt if there were no objections, that can be stated and it will suffice in such circumstances to say no more than that the application accorded with the relevant policies."

16. So far as Chisnell is concerned, to which I have referred, that is a decision of Newman J, which concluded that it was not sufficient for a decision letter to cross-refer to the contents of the officer's report; it was, as Newman J concluded a paragraph 24, good discipline for a decision-making body in reaching its decisions to "go through the intellectual exercise which the drafting of summary reasons involves and increase the certainty that matters have been considered according to the approach which the law requires".
17. By reference therefore to those authorities, Mr Clarkson submits simply that the decision letter must be read independently, and on its own, and, as there is no reference in there to very special circumstances, or as to the Council having decided that there are very special circumstances, this grant must fall.
18. In the alternative, Mr Clarkson submits, if the defendant is entitled to assert that the reasons set out in the decision letter amount to very special circumstances, then it was Wednesbury unreasonable of the defendant so to conclude.
19. Of the five reasons set out, which I have read, he submits that E has been expressly abjured as amounting to a very special circumstance in the response by the defendant's solicitors to the protocol pre-action letter sent by the claimant's solicitors, and I quote the relevant passage:

"It is accepted that lack of impact on openness is not on its own a reason for approval and does not contribute to very special circumstances."

Mr Zwart has stood by that concession before me. His submission, which I can well understand, is that, if, as was concluded by the Council in this case, the proposed development did not add to, and possibly detracted from, the inevitable harm of an inappropriate development in the Green Belt area because of its design and lack of impact on openness, then that would no doubt be taken into account in the balancing act, but he accepted that it could not amount of itself or taken together with the other matters to very special circumstances.

20. As for D, Mr Clarkson submits that, at most, if justifiable at all, that must be very subsidiary or ancillary, and could not possibly stand alone. He refers to the officer's report to the Council meeting of 9th May 2007 at paragraph 56, in which the annual reduction of CO2 emissions in the order of 40,000KG was said to be "a purely theoretical calculation". On any basis, there was a hope that there would be a reduction of CO2 emissions, and there was a report before the Council, to which my attention has been drawn by Mr Zwart, supporting such a proposition, namely that as a result of more visitors staying overnight, as opposed to coming for one day visits, there would be less journeys. But at best it is a pious hope and certainly, as Mr Zwart in the end really accepted, it could not possibly stand alone as a very special circumstances and would not add a great deal to the other matters, if anything at all.
21. Mr Clarkson submits that the nub of the reasoning is the combination of A, B and C. Mr Zwart does not dissent from that. He submits that the application for the enlarged and improved centre will not only improve the facilities for the disabled, and substantially improve the existing run-down facilities, as set out in C, but will amount to what he describes, and what his clients describe, as a unique centre for those who wish to come and enjoy the countryside, satisfying the real needs mainly of children, but to an extent also of others; and there is therefore, as he submits, and the defendant council is entitled to conclude that there was, a need for such provision which rendered this application, because unique, very special. Mr Clarkson submits that there may well be a valuable activity going on at, and an improved valuable activity to go on at, the OEC if planning permission is granted, but whether it is a very special circumstance, whether it is unique, depends upon the presence of B, namely that, as submitted by the defendant by way of supporting B, there is effectively nowhere else to put the expanded premises or to operate this valuable activity, and he submits that B is wholly flawed.
22. First, he submits, and the claimant has submitted since the bringing of the proceedings, that it is Wednesbury unreasonable to reach the conclusion that there is a very special circumstance simply by reference to this being the only County Council owned site suitable to provide the range of activities on offer, without having made an investigation as to alternative sites where the activity could be sited; and, insofar as entitled to look, as he submits that one in any event cannot, at the officer's report, he criticises paragraphs 28 and 29 of the report, which read as follows:

"28. The proposal involves the redevelopment of a long established site in an educational and community use. The existing nature and use of the site are material considerations in determining the proposal. Nevertheless, given the increased size of built development proposed at the site, it is reasonable to consider whether an equivalent proposal could be located elsewhere. A search undertaken by the applicant for possible alternative locations identified two potential sites. The basis on which the search was undertaken was that the sites are owned or leased by the Local Educational Authority and that sites are in a rural location in order to provide comparable programmes to High Ashurst. The acquisition of privately owned sites was not considered as a realistic proposition for the Education Department to undertake given that the application site was already in use as an OEC. Both sites, Thames Young Mariners OEC and Henley Fort OEC, are considered unsuitable alternative sites as they are too small to accommodate the numbers of people and the range of facilities provided at High Ashurst. In addition Thames Young Mariners lies outside the County and focuses on water based activities whilst part of the Henley Fort site is a Scheduled Ancient Monument further limiting the site's potential.

29. The uniqueness of High Ashurst in terms of its location, size and range of facilities cannot be matched by the other sites. High Ashurst is the only site suitable to accommodate the proposed development available to the Education Department."

The submission of the claimant was that there was a failure adequately to consider alternative sites by reference to the declared failure to consider the acquisition of privately owned sites or of sites outside the county.

23. That was the case as made in terms by the claimant in the application, the claim as issued and indeed in the skeleton argument put forward by Mr Clarkson for the purposes of this hearing. But in the course of oral submissions he introduced and developed a second ground by which he submitted that B is flawed. That was by reference to the content of a letter dated 17th August 2006, sent by Mr Kieran Wheeler, associate director to the senior planning officer of the County Council, and incorporated into the planning application by amendment, as recorded in the decision letter. This letter records as follows, under the heading (iv), "Consideration of Other Potential Sites":

"In conjunction with the Council's Education Department, we have undertaken a basic assessment of other potential sites in the area to establish if there are any suitable alternative sites which would accommodate the application proposals.

In the first instance, it is important to note that the High Ashurst site is centrally located within the County and is therefore ideally positioned for its user groups, which limits travel distances and means that the facilities are more accessible to a wider catchment..."

It again expands upon the advantages of High Ashurst:

"In light of the foregoing, we have sought to identify other potential alternative sites which could potentially accommodate the proposed development within the County and to assess their suitability based on the above criteria. There is clearly a large number of potential sites within the County which could theoretically accommodate the application proposals and therefore in order to refine the search, we have introduced the following parameters:

• We have focused the assessment on sites which are owned or leased by Surrey County Council Education Department. Land ownership issues are a realistic barrier to sites being available for development and are therefore a key consideration.

• Due to the nature of the facilities and activities provided by the OEC we have only considered sites which are located within a rural setting. Sites which are not located within a rural setting would clearly not be compatible with most of the facilities and programmes the OEC provides and would therefore not provide comparable locations for the application proposals.

Based on the above criteria, we have only been able to identify 2 other potential sites within the County..."

And the author of the letter refers to and discusses at length the Henley Fort and Thames Young Mariners OECs to which I have already referred. He then concludes:

"In light of the foregoing, it is considered that High Ashurst is a unique site in terms of its location, size and the facilities and opportunities it offers for residential groups all year round."

24. Mr Clarkson QC submits that in those circumstances it was Wednesbury unreasonable, because based upon no evidence, for the committee to recite that the Ashurst site was the only County Council owned site that is suitable to provide the range of activities on offer, when in fact no investigation as to whether there were other County Council owned sites available was carried out at all, save by reference to sites owned by or owned or leased by the education authority.
25. This issue as to very special circumstances was the main issue to be decided, with its two limbs, which I have described. The other more subsidiary issues were as follows: by way of second and third issues, that the defendant made a Wednesbury unreasonable decision in respect of access. The only accesses were dangerous and were unresolved or unpalliated by the conditions imposed, the access conditions which I have recited. The fourth issue was that the claimant had the legitimate expectation of being given notice of and the right to speak at the meeting on 9th May, and that, as his adviser Mr Tant did not learn about it until the day before, namely too late to attend, his expectation was denied: and that was a material procedural irregularity such that the decision must be quashed.
26. I turn to deal with the main issue, that of very special circumstances. In the somewhat unusual, but not unheard of, circumstances here that the County Council was deciding its own planning application, there was a report from the Mole District Council, which was not unnaturally a consultee in the process, and in that report of 16th May 2006 it was stated at page 6:

"There can be no doubt that the existing facilities are extremely dated and offer poor standards of accommodation and facilities for the users of the site. By its very nature such a site has to be located in the countryside and there is little doubt that this facility offers a valuable resource to young people, which is a goal of the Council. An argument can be made, given all the above factors, that there are very special circumstances which outweigh the harm caused to the Green Belt, and the proposal could be treated as an exception to the policies of restraint that apply to this area. This is provided that the use is restricted to youths and that the buildings are not let out to businesses for adult use."

27. The officer's report, to which I have referred, for 9th May 2007 meeting includes at paragraph 32 the following statement:

"Officers consider that the need for the facility, the existing use of the land and location of the site, and the lack of alternative rural locations represent the very special circumstances needed to justify the proposed development which by definition is inappropriate development in the Green Belt. The siting and design of the new buildings will not have a significant impact on the openness of the Green Belt."

When the Secretary of State decided not to call in the application, the relevant official on her behalf stated as follows at paragraph 5 of a letter of 11th June 2007:

"Having carefully considered these and other relevant planning issues raised by this proposal, the Secretary of State is of the view that the applicant appears to have taken into account and to have accepted that the proposed development is inappropriate development in the Green Belt. The applicant has therefore put forward very special circumstances, which in his view outweigh the harm caused by the development. The Secretary of State agrees that the proposed development would be well screened by the surrounding countryside. She notes that a scheme has been agreed to prevent access to the site by coaches, and that a travel plan to promote travel by non-car modes has also been agreed. The Secretary of State is satisfied that the issues raised do not relate to matters of more than local importance..."

28. However, Mr Clarkson QC submits, as I have earlier indicated, that, for reasons by reference to Article 22 and the authorities I have cited, all that I can do, and must do, is look at the decision letter itself, which makes no reference to very special circumstances, and that there can be no reference to the officer's report. He relies for that on the dicta of Collins J in Forest of Dean, which I have recited, which he says do not differ from the conclusions of Sir Michael Harrison. He can say this with some authority, having been on the losing side before Collins J. His submission is that all Sir Michael Harrison was saying in Ling was that a summary of reasons could be shorter where it was not taking issue with an officer's recommendation but simply following it, but that it did not mean that it was so short as to exclude reasons from it or, as per Newman J, cross-refer to it.
29. In this case, there was no cross-reference to the officer's report and so an argument as to whether one could simply cross-refer does not arise. Had the matter come before me afresh, I would not have been so clear as Newman J is that cross-reference is not appropriate and it may well be that in his judgment at paragraph 42, where he indicated that committees or decision-makers should as a general rule give their decision by way of a separate summary of reasons, not by way of a global reference to a document not in itself a summary, he was only laying down a general rule and leaving an opportunity for exceptions. It may well be different if, unlike in that case, there were cross-reference to an identified paragraph, such as, for example, in this case, paragraph 32, which I have recited. But, in this case, there was no cross-reference and consequently not even that opportunity, Mr Clarkson submits, to look outside the four walls of the decision letter. Consequently he submits the grant must fail.
30. Mr Zwart has put forward two reasons, both of which I find well-founded, for countering that over-legalistic approach. Of course, I must respect, and do respect, the important requirements of Article 22, which means that an outsider, a third party, must be able, particularly importantly in a planning context, to understand why permission has been granted or refused. But it must not in my judgment be read over-legalistically. His first submission is this: his starting point, although not strictly speaking an admissible starting point, is that the decision letter was in fact an adoption of the officer's recommendations in toto. The words of the reasons, and indeed of the conditions, echo those set out at page 16 of the officer's report. Lying behind this submission is the implicit suggestion that, although it might be suggested that committee members do not necessarily know the details of planning law, officers are less likely to be so erroneous as to conclude that in the Green Belt it is possible to sanction inappropriate development without the existence of very special circumstances. But his answer is a simple one. He refers to the express terms of PPG2, which I have recited. Very special circumstances are there defined in terms in the second sentence of paragraph 3.2:

"Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."

He points to the terminology that has been used, first by the officers and then by the committee, in the decision letter, namely "the following other material considerations outweigh these policy considerations". He submits that the word "clearly" in paragraph 3.2 simply means that it is necessary for the deciding authority to be clear that the other considerations outweigh the harm and, of course, as I earlier indicated, he submits that in that outweighing there can be considered E, as set out by them in their summary of reasons. But once, he says, the other material considerations being considered have clearly outweighed the harm, then they are very special circumstances as provided in paragraph 3.2 of PPG2.

31. I agree. I do not encourage this formulation. It has caused quite unnecessary litigation which might not have arisen if both the officers and the committee had used the term of art which is entirely easy to adopt, "very special considerations", which the officers themselves used time and again in their report and, in particular, used in reaching the recommendations which were then adopted by the committee. Paragraph 24 reads:

"The most significant issues relate to whether very special circumstances exist to justify what is considered as inappropriate development..."

Paragraph 25 reads:

"The proposed development does not fall within any of the acceptable uses and is therefore considered as inappropriate development which can only be permitted if there are very special circumstances which outweigh the harm due to inappropriateness and any other harm."

There would have been no difficulty in using that same phraseology when it came to their recommendation to the committee and the committee would no doubt have adopted that same formulation. But, although I hope this never occurs again, I have no doubt at all that that is what was intended and that I can, without going outside the four corners of the decision letter, be satisfied that what was stated was that PPG2 was satisfied.

32. If I am wrong as to that, then I adopt Mr Zwart's fallback argument, which is this: that the following course would not offend against the principles of Ling and of Forest of Dean, namely that one looks at the four corners of the decision letter to see whether that decision letter has given reasons. This decision letter has given reasons, and given reasons which, subject of course to whether they are Wednesbury unreasonable or not, stand up clearly and of course easily surmount Newman J's test of avoiding cross-reference. The reasons are thus set out in the letter and comply with Article 22. What is then necessary is to see whether they surmount a challenge to their adequacy or their reasonableness and, in order to check whether that is so and to check whether they are lawful, it is possible to look at the officer's report and, if one then looks at the officer's report, to see whether those reasons are good in law, then one sees paragraph 32, and one sees the terms of the officer's report and one is satisfied therefore that they are, subject to Wednesbury unreasonableness, good in law. I agree.
33. I turn then to the second submission made by Mr Clarkson, namely that, if I were to find that those reasons were or were intended to be very special circumstances, then they are Wednesbury unreasonable. A to C, taken together, plainly could be Wednesbury reasonable conclusions. I am not persuaded by Mr Clarkson's original submission that they are rendered Wednesbury unreasonable by a failure to consider either premises outside the county or premises that are privately owned. I have already read paragraph 28 of the officer's report and, although the reasoning given for not considering the acquisition of privately owned sites is a very slimline one, namely that it is not considered as a realistic proposition, which must include the economics of buying a new site rather than staying with an old, I would not conclude of itself that that amounted to a Wednesbury unreasonable conclusion. Nor would I consider it Wednesbury unreasonable to have concluded that it was sensible only to look at sites within the county.
34. However, I have recited the contents of the letter of the 17th August 2006. It is wholly clear from that letter that those investigating the site and its alternatives on behalf of the defendant did not consider all sites that were Council owned within the county. They expressly limited their purview: secondly (I refer to the second bullet point), to sites that were in rural surrounding, with which I have no difficulty, but, first, to sites that were owned by the Local Education Authority, which led them only to look at two sites - that against the background that, on the face of that very letter, there was "clearly a large number of potential sites within the County which could theoretically accommodate the application proposals". Mr Zwart submits that I should hone in on the word "theoretically" and conclude if it was only a theoretical possibility then someone somewhere was entitled to discount it. But I do not accept that proposition. If there was a theoretical possibility then either that theoretical possibility should have been examined, and, if appropriate, ruled out, or, at the very least, the true position should have been disclosed to the committee. Now, I follow that Mr Zwart says that somewhere deep in the papers the contents of this letter of 17th August would have been before the committee, indirectly at any rate. But the committee primarily was looking at the officer's report, which gave no hint of the fact that the inspection of sites within the county had been so limited: indeed, far from it, it positively set out in draft by way of a recommendation a reason, adopted in the same terms by the committee, which clearly suggests, by reference to the statement in B that this was "the only County Council owned site ... suitable to provide a range of activities on offer", that there has been consideration of other Council owned sites when in fact, save for two owned by the local authority, there had not.
35. That, in my judgment, is a very significant matter, given the important submission by Mr Zwart, and plainly important view held by the officers and indeed the Mole Valley Council in its report, that this was a unique opportunity or a uniquely important site or a uniquely important activity that was to be housed. If this is unique, then there must be no other alternative to it. If there is a need, then there needs to be a need by reference to the absence of any alternative. I entirely accept that in this situation, unlike others, such as, for example, the retail situation or questions relating to caravan sites, there may not be an absolute obligation to consider alternatives, but the Council in this case said that it had considered those alternatives, at least impliedly, when it had not.
36. Mr Clarkson has drawn my attention helpfully today to the decision of Trusthouse Forte Hotels Ltd v Secretary of State for the Environment [1987] 53 P&CR 293. That was the reverse situation, when an application was refused, and the issue related to whether there were alternative sites. In formulating his propositions, Simon Brown J, as he then was, said:

"Where, however, there are clear planning objections to development upon a particular site then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it."

The Council here was right to consider alternatives, wrong not to carry out that investigation or at any rate to fetter it so far that it was very much more limited than it need to have been, wrong not to disclose the fact that it was so limited and wrong to imply that there had been a full investigation when there had not.

37. In those circumstances, I am satisfied that this decision by the committee was flawed, because it believed as an important part of its conclusions that there was no other County Council owned site which was suitable, when in fact no-one had reached that conclusion or given themselves the opportunity to reach that conclusion.
38. I turn to the second and third grounds of challenge to the planning application, the grant of planning permission by reference to access. The officers report stated at paragraph 45:

"45. High Ashurst OEC is located between Mickleham and Box Hill near Dorking. The main issue in respect of transportation is the suitability of the access routes. Access is via Headley Road/Lodgebottom Road, Ashurst Drive or Headley Heath Approach. The Centre access road runs from Headley Road/Lodgebottom Road in the north to Ashurst Drive and Headley Heath Approach in the south. All of these access routes are problematic.

46. If this was a new site under consideration, it is highly unlikely that any of these access routes would be acceptable without improvement or limitation in their use. The Centre has, however, been in existence for a large number of years and already generates traffic movements legitimately through a planning consent that was granted in 1968."

At paragraph 61, under "conclusions", the report says:

"61. All of the potential access routes to High Ashurst are problematic in transportation terms."

At the meeting of 9th May itself, in the minutes, it is stated:

"It was noted that the Highways Department considered the northern access point to the site as substandard and dangerous and therefore it was necessary for access to be made from three points."

39. However, all those matters were considered by the committee. There had been originally an intention that the decision should be made at a meeting in September 2006. That was adjourned until October 2006, and then adjourned indefinitely for further consideration, and it is quite plain that it was by reference to the concerns about access that that adjournment occurred. By a notice of 21st March 2007, it was publicly notified, including to the claimant and his adviser, that there was to be consultation on revised traffic management proposals, and there was an invitation to make representations about that application. There was a site visit on 2nd October 2006, when matters of concern were raised by the members and they related in particular to the use of coaches to access the OEC, and subsequently it was part of the condition that no coach be allowed to approach the premises.
40. I am satisfied that the committee was entitled to resolve its concerns, which were fully disclosed, by the imposition of conditions, including condition 6, which, it is to be recalled, recited that prior to the occupation of the development the applicant was to "submit a travel plan, based on the 'Traffic Management Principles' dated 17th January 2007 and any other relevant matters, to promote access to the site by non-car modes and to prevent access to the site by coach, to be agreed and implemented to the satisfaction of the County Planning Authority". Mr Clarkson referred to PPG13, Planning Policy Guidance 13: Transport, of 5th May 2006 at paragraph 89; which stated at 89(4) "where a travel plan would help address a particular local traffic problem associated with a planning application, which might otherwise have to be refused on local traffic grounds", such plan should be submitted. However, "unacceptable development should never be permitted because of the existence of a travel plan".
41. I am entirely satisfied that that applies to a situation in which a development was inappropriate solely because of a real access problem, and that consequently the provision of the travel plan was the only way in which it could be resolved and the only matter which rendered the otherwise unacceptable development acceptable. That is not this case. The conclusion by the committee was that this development was appropriate, but that certain conditions, one of which related to the provision of a travel plan, were necessary. It was not, in my judgment Wednesbury unreasonable for the committee so to conclude and the conditions in question are admirably clear and admirably sensible.
42. So much for the access conditions. There was a separate point which was made, but not developed, by Mr Clarkson by reference to the user condition. That was a provision that the development should be used by schools, youth groups and similar like groups, and not by corporate groups and a concern was flagged up by the claimant that this might permit adult education groups, which apparently is not in fact what is intended by the defendant, but, as the claimant points out, whatever may be said by the defendant, such usage would not offend against that condition. I am however entirely satisfied that the governing condition is condition 11, namely that there shall be no more than 300 visitors on the site at any one time, and that any concerns which the claimant may have as a result of the use of the site by adult education, as opposed to youths, even if that is a realistic possibility, would be allayed, or at any rate would be rendered immaterial, by the limitation on the numbers of the visitors, coupled of course with the ban on coaches. I would not conclude in any event that the inclusion of condition 14 renders this decision in any way unenforceable or unlawful.
43. I turn to the fourth ground, which is that of legitimate expectation, which is based on the well-known but relatively limited principles enunciated in particular in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213. I say "relatively limited" because, of course, this is first of all the planning area, where, as has been previously commented, there are certain obligations owed by the Government to the public in any event, and it is never easy for a private person to acquire a right against the Government. What is required is that there is a clear establishment of a situation in which such promise was so made that it would be inequitable for the Government to go back on it, and that it was relied upon. Here, there is very little evidence indeed to support the establishment of a legitimate expectation case, but I shall recite that which there is, and it all relates to the involvement of Mr Tant and his firm as advisers to the claimant. Mr Tant sent on the 8th September 2006, in relation to the then imminent meeting of 13th September, the following email:

"I refer to the above item on the Committee agenda for next Wednesday 13th September 2006. The item concerns the proposed development at the High Ashurst OEC Mickleham and we submitted representations on this matter on behalf of our client, Mr P Wates, on 8th August, following our client's earlier letter of 1st June.

Please note that I wish to speak on the matter at the meeting in objection to the planning application.

I should be obliged if you would acknowledge this request."

44. This was permitted, by a letter in response of 8th September 2006, reminding Mr Tant that he had a limit of three minutes, and that he could nominate a person to speak on his behalf, if he was unable to attend, but details of any change must be notified by 9.30 on the meeting day. That meeting, as I mentioned earlier, was in the event adjourned to 11th October, and Mr Tant requested to speak at that meeting, and a letter of 4th October 2006 was sent to him, telling him that he was registered to speak at the meeting. It said:

"I would be grateful if you could let me know as soon as possible if you no longer wish to speak at the meeting.

If you have any further queries, please let me know."

45. That meeting was, in circumstances to which I have referred earlier in this judgment, then adjourned indefinitely and Mr Tant sent an email on 6th October, saying.

"Thank you for your email notifying me that the item on the planning application for High Ashurst OEC has again been withdrawn from the agenda. Can you indicate when the item is likely to be considered?"

And the response on 9th October was:

"Thanks for your e-mail. The High Ashurst application has been withdrawn indefinitely. I understand that the Chairman has asked officers to revisit the issues regarding access to the site and the use of Headley Heath Approach, but at this stage, there are no timescales available."

46. There was no response to that email, saying "thank you for that information, please keep me in touch" or "please make sure I am registered to speak if the matter ever comes back again". It is plain, however, of course, that the claimant and his adviser were known about, and were on the list for receiving information, and Mr Tant received the notification of the new traffic management proposals, to which I referred earlier in this judgment, under cover of a personal letter to the claimant, care of Mr Tant, dated 21st March 2007, which concluded:

"If you wish to make representations on the revised proposals please do so in writing by the date on the enclosed notice.

There are so many letters on planning applications that it is not possible to send individual replies. However, all written comments are acknowledged and correspondents are told how the application has been determined."

There is no notification there, "of course, you, Mr Tant are registered to speak before it is determined". There is no response in the evidence by Mr Tant to that letter. He appears, however, as one would expect as a professional adviser, to have kept his eye on the ball, and his nose to the grindstone, because he put in responses to the latest proposal on his client's behalf, and he kept his eye on the website to see whether the matter was going to come up again, and he appears to have, on his evidence, looked at the website on 8th May, by coincidence, and noted that the meeting was fixed for the following day, by which time he was unfortunately unable to drop everything, perfectly understandably, and attend. He did not, however, seek to obtain an adjournment of that meeting.

47. In those circumstances, I have to conclude whether there was a legitimate expectation on the part of the claimant and/or Mr Tant on his behalf that he would be given the opportunity to speak at any meeting at which the agenda item was brought back and/or that he would be given notice of that meeting over and above any given to any other member of the public. It appears that at least one member of the public and/or objector did come to the meeting and spoke at that time.
48. The expectation which is sought to be established has to be that he would be registered to speak at or given express notice of any meeting at which the agenda would be brought back. He made no response, as I have indicated, to the original letter when it was said that the matter was going off into indefinite adjournment, when he easily could have done. He made no such reference in response to the letter, to which I have again referred, which gave him the opportunity to comment on proposals. I am not satisfied, on the basis of the evidence I have seen, including Mr Tant's evidence, that he did act in reliance on any implicit representation to that effect by the defendant or that he was entitled so to rely and I am satisfied there is no case of legitimate expectation at all.
49. The decision then is flawed because of the committee's reliance on the inaccurate information, by way of the implicit understanding on the committee's behalf, that there had been investigation which enabled the conclusion to be reached that there was no other site owned by the Council which was available, when such was not the case.
50. Mr Zwart made an application, in the light of my indication to that effect, to seek to put forward evidence, for which he would have required a short adjournment, to argue that the grant of planning permission should not be quashed because it would be academic to do so. He put forward the following in support of that submission, which he made quite clear was not for the purpose of seeking to argue that the decision was not flawed, but simply in order to establish a case that the quashing of the decision would be academic and pointless, because the same result would be achieved. That would require evidence on his behalf, in particular, to explain both the letter of 17th August 2006 and the facts which lay behind it. He submitted (1) that the point on which Mr Clarkson QC has succeeded was only made in oral submissions, as I have described; (2) that the evidence that he wished to adduce to explain the letter of 17th August 2006 would be intended to show that in fact even at that date there was investigation which would show that there were no alternative sites within the Council, such as to render pointless my quashing the order so that the matter could go back for such investigation now to be carried out, because it would reach the same result; (3) that it was a real concern, although he had no evidence to show me that these were his instructions, that the lottery funding which is presently available on the basis that a valuable and important development is practically completed by the end of January would fall away if the quashing of the permission meant that that January date could not now be achieved, so that the issue as to whether my decision is academic or not has a real economic effect, and that is that it is not simply a question of choice as to leaving it alone or coming back with the same result, because the second course would or might mean the loss of lottery funding.
51. I agree that the point was only expressly made in oral submissions by Mr Clarkson. It may be that it was only in the course of detailed preparation that the underlying document of 17th August 2006 was fully considered but, in the pre-litigation correspondence by the claimant's solicitor of 8th August 2006 -- indeed so far before the litigation that it antedated the 17th August letter itself -- Mr Tant said as follows:

"The function of the Centre could be achieved within or immediately adjacent to the countryside - not necessarily in open countryside. However, it is plainly wrong to assume that all countryside within Surrey is Green Belt: this is not the case - there are significant parts of the county that constitute countryside beyond the Green Belt and there is no evidence that the County Council or its agent team have considered the scope for alternative locations outside the Green Belt within Surrey."

He then goes on to deal with the point about the education facilities outside the county. Now, I do not know whether that letter of 8th August 2006 was in the possession of the author of the letter of 17th August 2006, but it was certainly in the possession of someone on the defendant's behalf before the meeting of May 2007.

52. The response by the defendant to the protocol letter, prior to proceedings, of 6th August 2007 stated the following, under the heading "Alternative Sites":

"Another material consideration put forward by the County Council was that High Ashurst was the only site owned by the County Council that is suitable to provide the range of activities on offer. Because of the inappropriate nature of the proposed development, the applicant was required to investigate as to whether the proposal could be accommodated elsewhere. The search undertaken was focused on sites which were owned or leased by the County Council and within a rural setting."

That was not an accurate statement and it was made after proceedings were threatened.

53. I am not persuaded that, if there were an adjournment for some opportunity to put in an explanatory evidence explaining the letter of 17th August 2006, it would in any event lead to a finding that any order I made was academic; at least not without introducing a tranche of further evidence relating to the availability and suitability of other sites within Surrey, which I would plainly conclude it would be entirely inappropriate to resolve on the limited issue as to whether quashing the order would be academic or not and which would be far better to consider, as Mr Clarkson has submitted, within the planning arena. I am not prepared for that reason consequently to grant an adjournment, nor am I persuaded that the Lottery funds would necessarily be lost: neither that, if I quash the order now, giving the earliest opportunity for the defendant to bring the matter back by way of a fresh application and, if appropriate, a fresh grant of permission, it would indeed be too late to get the building completed by January, nor that there would be no realistic chance of persuading the Lottery fund to extend its present deadline.
54. In those circumstances, I do make the order quashing the grant of permission.
55. MR BLUNDELL: My Lord, I am grateful for that order and I present Mr Clarkson's apologies for not being able to be here at this stage of the day. He had a prior professional commitment.
56. In light of my Lordship's order and my Lordship's comments, I do just make an application for the claimant's costs to be paid by the defendant. Given that the matter has gone on to two days now, clearly into two days, in my submission it should be a case of costs to be subject to detailed assessment, if not agreed.
57. MR JUSTICE BURTON: Yes.
58. MR ZWART: Yes, my Lord. We make a counter application for our costs on the basis of the issues approach, that you may appreciate, because, when push comes to shove, the deal breaker issue in the case was raised on the first afternoon of the first day as strictly a new ground, strictly without CPR permission for that new ground. Therefore it would be most odd to reward this, in those circumstances in particular, by an award of costs in favour of the claimant. Can I just take you through the CPR provisions and the relevant cases and a number of factors? You will be familiar with the terms of CPR 44.3, which is an obligation to take into account all the circumstances.
59. MR JUSTICE BURTON: Yes.
60. MR ZWART: And those include a discretion as to whether costs are payable by one party to another and the amount. The circumstances include the conduct of the parties, whether a party has succeeded on part of its case, even if he has not been wholly successful, and conduct of the parties includes whether it is reasonable for a party to raise an issue and also the manner in which it raised the issue and therefore in consequence we would rely upon -- there are two cases. If I can just hand them up as an example of summarising the principles.
61. MR JUSTICE BURTON: Let us just summarise where we are at. Leaving aside the fifth ground, which never got off the ground, and probably did not get permitted by Collins J -- if it did it has not been pursued -- leaving that aside, there were four grounds, the first of which fell into two parts: the first point, which was a very short point on the law as to construction of decision letters, and the second, the longer point, on Wednesbury unreasonableness. You won on part 1 of issue 1 and you won on issues 2 and 3, which really were not run separately, and on issue 4, legitimate expectation. Insofar as you lost on ground 1(b) you did not lose on the basis upon which it was run at all times until the first day of the case, namely as to outside the county and private land. So you lost and you lost on discretion, but you won on four and two halves issues.
62. MR ZWART: That is right. Essentially, the claim was defended successfully other than the issue that arose in relation to the discreet point.
63. MR JUSTICE BURTON: Right. Now, what are you going to show me?
64. MR ZWART: Firstly, I have handed up a summary of the CPR power and obligations. Secondly, you will see there is a case called HLB Kidsons, which, as summarised in the Lawtel note, involved the approach to issues based costs and looking at the overall justice of the case, where the claimant was ordered to pay the defendant's costs as the defendant in reality had been the winner. If we turn to page 10 of the judgment, that simply summarises the principles with a number of cases there.
65. MR JUSTICE BURTON: Hold on, page 10 of the judgment.
66. MR ZWART: Sorry, it is paragraph 10 of the judgment.
67. MR JUSTICE BURTON: No, I go from paragraph 5 to paragraph 207. No, and then it is stapled in a funny order. I have now jumped back one. Yes, paragraph 10.
68. MR ZWART: And you will see there, from paragraph 10, that the discretion of the court is wide, that the aim is always to make an order that reflects the overall justice of the case. The general rule remains that costs should follow the event. The costs in relation to successful parties are determined by reference to litigation as a whole. It remains appropriate to give real weight to the overall success of the winning party and at the same time assessing success from the right --
69. MR JUSTICE BURTON: Well, I have read that.
70. MR ZWART: And also to approach the matter in a realistic and commercially sensible way, and we see an example of that at paragraph 15, where Kidsons, who were the claimants, were entitled to costs of two issues there and, at 16, it was summarily assessed, which may not be appropriate in this case. That is reflected in an approach by the Court of Appeal in the Hall case, where at paragraph 71, very close to the back, the obligation is to consider who is the unsuccessful party, and that is considered at paragraph 72, middle sentence, the question is best considered under CPR 44.34, which requires the judge to consider whether a party has succeeded on part of his case, even though not wholly, and 73, the first two sentences, what amounts to partial success is obviously fact sensitive and a matter of fact and degree.
71. MR JUSTICE BURTON: Yes.
72. MR BLUNDELL: And the focus should be on the partial success of the losing party on an issue with costs consequences. So the short point here is that, strictly put, there has been success here by the defendant on a ground that has been advanced without CPR permission and it would be odd to reward that in the circumstances where, as have you identified correctly previously, there was no notice, despite a pre-action protocol letter, two considerations for permission, filing of evidence, skeletons exchanged, a substantive hearing -- you asked Mr Clarkson whether he could point to a document that specified the point and he was unable to.
73. MR JUSTICE BURTON: No, he was not. That is right. He accepted that the first time it was made was in oral submission yesterday.
74. MR ZWART: And, with no disrespect to him, he did not request permission to advance the ground, but simply proceeded, although strictly it was outside the scope of the claim that had been --
75. MR JUSTICE BURTON: Well, it was another way of putting the case that your assertion that B was Wednesbury unreasonable.
76. MR ZWART: Yes.
77. MR JUSTICE BURTON: Yes.
78. MR ZWART: And so in those circumstances we would respectfully request that you grant an order for costs in favour of the defendant in the circumstances and not require the defendant to pay the claimant's costs.
79. MR JUSTICE BURTON: Now, should I be concerned at all about how it came about that this statement was made in officers' recommendations?
80. MR ZWART: In relation to...
81. MR JUSTICE BURTON: Costs. Conduct of the parties.
82. MR ZWART: Going back to the officer's report itself.
83. MR JUSTICE BURTON: No, the committee only said what they did because the officers recited their recommendation in the way they did. They actually did a draft for the Committee. I only appreciated that during the hearing, and the officers had no justification for saying what they did, did they? Where are we? Where is it? We know what he says, but I am just trying to read it again. Draft reasons, page 16 in the bundle:

"This is the only County Council owned site that is suitable to provide the range of activities on offer."

84. I mean, it was sloppy.
85. MR ZWART: I would agree that it was sloppy and I cannot resile from that, but in relation to conduct there was no inequitable conduct, as it were, behind it, it was an administrative process.
86. MR JUSTICE BURTON: No, but what happened was that the defendant believed you. Perhaps they should not have done, particularly as Mr Tant was on to the point on 8th August and could well have done his own investigations, and Mr Clarkson had a half hint to us that some work had been done when he said today that they were pregnant with examples of alternative sites. But, that said, the other side appears to have accepted what you said at face value, until they looked at the 17th August document.
87. MR ZWART: That is quite right, except that it does cut both ways, because --
88. MR JUSTICE BURTON: Why did they leave it so long?
89. MR ZWART: -- then they would no doubt have formulated their claim to spell out the point and we would obviously put evidence in --
90. MR JUSTICE BURTON: And you would disclose the 17th August letter. It was an amendment to the planning application, so it must have been publicly available, was it?
91. MR ZWART: Absolutely. I think there was reference to it in the September 09 committee report.
92. MR JUSTICE BURTON: September 06.
93. MR ZWART: 06. So conduct, if it is against me, on that point, is the other way --
94. MR JUSTICE BURTON: Sloppy when it happened but not hidden -- the important thing is that the letter, which was inconsistent with the statement, has been in the claimant's possession for two and-a-half years.
95. MR ZWART: That is right. I should also highlight that in seeking our costs, a consideration, because your discretion is broad, obviously, is the extent to which there is any discount that could be given in favour of the claimant, because they ultimately won on the issue, but at the same time I would request that you take into account that the CPR obligation is to ask for permission and, had the ground been formulated in advance in the claim or even in the skeleton --
96. MR JUSTICE BURTON: You might have been able to deal with it.
97. MR ZWART: We might have been able to put in material which we were essentially, with no disrespect to yourself, barred from doing today, because, as I understand it, it was available but you were not persuaded that it ought to be.
98. MR JUSTICE BURTON: Well, there it is. Thank you very much. Now, what you do you say about that?
99. MR BLUNDELL: My Lord, perhaps unsurprisingly I do object to that particular order. The reasons are these: principally --
100. MR JUSTICE BURTON: Sorry, you object to...?
101. MR BLUNDELL: I do object to my learned friend's suggested order in terms of the costs, namely that the claimant should pay the defendant's costs. Of course, we accept that we have not won on all the grounds and that may have particular consequences if we get a costs order in terms of the extent of the costs that we are entitled to recover. But in terms of whether or not the claimant should have to pay the defendant's costs, in my submission the claimant has not acted in any way unreasonably here. The simple position is the claimant put forward its case at pre-action stage, the very clear response in the pre-action protocol letter from the defendant was that all County Council owned sites had been searched, there had been a full investigation, so in fact the County Council's positive case, not only in the course of this litigation but in fact at the pre-litigation stage, has been that all County Council sites were searched. That contention has been pursued throughout the course of pleadings. Of course, I have to accept, as Mr Clarkson did, that the precise point in terms of the sites only in fact being owned by the education department --
102. MR JUSTICE BURTON: Came up yesterday.
103. MR BLUNDELL: Came up yesterday, and that of course has come out in the more detailed examination of the papers before the court.
104. MR JUSTICE BURTON: Well, it is pretty recent examination, because the very detailed and very full skeleton argument was served on 12th March and you had not picked it up then.
105. MR BLUNDELL: My Lord, no, but of course the position is we are relying, as we say we are entitled to do, upon the assertion made by the defendant in the pre-action letter.
106. MR JUSTICE BURTON: Not so. You rubbished the defendant -- quite rightly, that is your prerogative -- on a whole lot of matters and you had in your possession -- are you able to dispute that you had that 17th August 06 letter way back? It was an amendment to the application. It would have been in your possession, or Mr Tant's possession anyway, from day one.
107. MR BLUNDELL: My Lord, I am not in a position to dispute that, but the simple position is that of course we keep coming back to the stage where we raised the issue of the extent of the site search and the positive case put forward by the defendant at all stages, pre-litigation and post the commencement of litigation, is that all the County Council sites had been searched. Now, my Lord, that is materially misleading -- I make no serious ethical criticism by saying that -- but it is a misleading statement. It is statement upon which we have relied in formulating our case and over the course of proceedings. In this court, of course, matters have come out in the wash. My Lord, we say we are entitled to rely on the pre-action protocol response, given, of course, the very high importance attached to candour at the pre-action stage, and given the high importance attached to the pre-action stage actually for getting the matters out, so the matters being out in the open, as far as we were concerned, once litigation was contemplated, was actually that the full range of sites had been searched. My Lord, we say that the Council had the opportunity to correct that error in the way that they presented the case at that pre-litigation stage, given the broad way we raise the issue. So, my Lord, that is the reason why I say certainly there should be absolutely no order as to costs against the claimant and, given that the claimant is an individual in this case and a very directly affected individual, in my submission it would have a rather chilling effect on the ability of individuals to come to the court if that approach were taken.
108. Can I just say two words about the authorities my learned friend relies on? I have obviously not had an opportunity to read those in full, they were handed up to me at the same time as your Lordship. The first point I would say about the HLB Kidsons matter is simply taking matters from the Lawtel summary. In the bold headnote of the top, my learned friend places some reliance on the words.

"Although the claimant has succeeded on one issue at trial, it had reflected overall justice of the case to order the claimant to pay the defendants' costs on the standard basis, as the defendant in reality had been the winner."

109. My Lord, in this case we say the defendant in reality has certainly not been the winner and this is a case where your Lordship has found that the decision in question was Wednesbury irrational, albeit on a very limited basis, we accept that, but nonetheless it is a finding of Wednesbury irrationality which, of course, in this court, is not necessarily a common occurrence. We say that it is clear we have been the winner, albeit on limited grounds. The defendant has certainly not been the winner here. So, my Lord, we say HLB Kidsons can be distinguished on that basis. As regards the second case, the authority of Hall and Stone that my learned friend relies on, he took you to paragraphs 72 and 73 in particular. Again, my Lord, I cannot take you to anything else, because I am not familiar with the case at the moment. However, I would say this, it is plain from those paragraphs, indeed the beginning of paragraph 73, the court says what amounts to partial success will be a matter of fact and degree and will be case sensitive. Well, my Lord, ultimately we say what amounts to partial success will be a matter for the costs draftsman, or the costs judge rather, when the matter goes off for detailed assessment, but it is a fact sensitive issue and certainly does not justify making an order for costs against the claimant. Whether or not the costs judge discounts the total costs that we say the claimant is entitled to otherwise is a matter obviously for him upon the evidence and upon your Lordship's very clear finding. In my submission, it is a case of a full order of costs but we leave that for another day.
110. MR JUSTICE BURTON: Thank you.
111. MR BLUNDELL: My Lord, I am grateful.
112. MR ZWART: Yes, just very briefly, my Lord. It is said that the claimant did not act unreasonably. We do not seek the costs on an indemnity basis, just simply wrap the short notice into the overall conduct. It appears accepted that the precise point was not raised by them and, although it is said that the issue of site search was raised, of course, we were successful on breadth and geographical area points, which disposed of the issue, and, perhaps importantly, it comes back to the evidence point and the CPR permission point, because, clearly, if this point was so obvious, it would have been spelt out earlier and it would have been spelt out, before evidence was required to be filed and there may well have been an opportunity there for us to put in material and, unfortunately, in the event, we have not had the time to put that together. So, in all those circumstances, we would request our costs but accept that you have a discretion in relation to it being discounted, which is another way of putting an issues based approach.
113. MR JUSTICE BURTON: Thank you very much indeed.
114. I propose to make an order for no order as to costs. The claimant has succeeded in this action and to that extent has asked for his costs. But, on analysis, I am satisfied that he should not be entitled to them but I am equally satisfied that the defendant has not succeeded either.
115. Looked at in reality, in respect of this case - which is not limited to a two day hearing before me but goes back to an application which was refused on paper on the basis of five grounds before Dobbs J and then granted in an oral hearing by Collins J - looked at in the totality, the position is that one ground that was refused by Dobbs J, and possibly was disposed of before Collins J, but it is not clear, was not pursued. That left four grounds. Of those four grounds, there is no doubt about it that that claimant failed on the second, third and fourth. The second and third took some time both by way of preparation and by way of argument. The fourth, which was the legitimate expectation argument, certainly required evidence and argument and took some considerable time in submission, certainly in the skeleton arguments. So far as the first ground is concerned, the ground of construction the claimant failed on. That left Wednesbury unreasonableness. So far as that is concerned, the main ground which was pursued at all times up to today, the main basis for that ground, failed. The only basis on which the claimant succeeded was one which was, as Mr Clarkson has said, raised for the first time yesterday. Now that, of course, might lead to some partial success for him on the basis that he did succeed with some partial order for costs in his favour, but I take into account in order to offset that the fact that this was not a matter mentioned previously, including not mentioned before Collins J and therefore possibly, although it is a sub ground of Wednesbury unreasonableness so that it may not have necessarily have required its own permission, was nevertheless not the subject of any submission or any consideration as to whether it should have permission granted. Had it been raised, then it would have led, I am satisfied, to the kind of application for evidence which might still not have assisted the defendant any more than perhaps as to the issue of discretion, but nevertheless would have meant that the matter was more fully argued on the defendant's behalf than Mr Zwart was able to argue it before me.
116. Equally, so far as the application is concerned, there is no excuse or reason given for why it was raised so late when the letter in question has been in the possession of the claimant since, if not the very beginning, certainly well before proceedings were launched. There is not any question of late disclosure on the part of the defendant and the same point is made, had the claimant seen that letter and relied upon its content earlier, then there would have been the opportunity for the matter to be more fully weighed before me.
117. On the other hand, I note the fact that the claimant too appears to have entirely ignored that letter and reiterated the opposite of its content in the protocol reply, to which I referred in my judgment: and I have granted relief to the claimant.
118. For all those reasons, I am satisfied that the proper order here is, notwithstanding that the claimant has succeeded in the relief that he obtains and the defendant has succeeded on at any rate four or five of the issues, neither of them should obtain their costs and there should be no order.
119. Thank you very much. I am sorry we have had to sit so late.