England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
MANCHESTER CIVIL JUSTICE CENTRE

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		16th July 2010

His Honour Judge Stewart QC:

Introduction

1. This is an appeal under Section 289 of the Town and Country Planning Act 1990 ("TCPA 1990"") brought by Kane Construction ("Kane") against the decision of the Secretary of State's inspector, Katie Peerless, upholding an enforcement notice issued by Nottinghamshire County Council ("NCC") in relation to land off the Great North Road, Toroth, Redford, Nottinghamshire ("the site"). The decision letter is dated 19 February 2009 and followed a site visit and inquiry which took place on 4 February 2009. The inspector dismissed Kane's appeal against an enforcement notice issued by NCC on 9 January 2008. The breach of planning control alleged in the notice was the carrying out of mining operations. Permission to appeal to this court was granted by HHJ Pelling QC on 26 March 2010.
2. The issue for this court is the correct interpretation of planning permission granted by Bassetlaw District Council ("Bassetlaw"). Although the reasoning of the inspector is important, the court's task is to interpret the planning permission. If, as a matter of law, Kane's submissions are incorrect, the relief they seek -- namely remission back to the Secretary of State -- should not be granted (PG Vallance v Secretary of State for the Environment [1993] 1 PLR 74; ELS Wholesale v Secretary of State [1987] 56 P and CR 69).
3. Mr Harwood of counsel has appeared for Kane and the fourth respondent, Stuart Simpson. Mr Kane and Mr Simpson are occupier and owner respectively of the site. Mr Maurici of counsel has appeared for the Secretary of State, and Mr Straker QC for NCC. Bassetlaw has not appeared and has not been represented.

Background facts

4. The site consists of 15 hectares of land off the Great North Road, Toroth, Redford. Five fish-breeding ponds were constructed in the north-west corner of the site in 2002 following a grant of planning permission by Bassetlaw. Those breeding grounds have not been the subject of an enforcement action. The great majority of the site is laid out as several fields.
5. On 20 August 2006 a planning application was made by Mr Simpson for the District Council for the "use of the land as lakes for breeding fish and fishing" under reference 48/06/06R. On the form the applicant ticked that the proposal involved change of use of building and / or land and alteration of the access, ticking "no" for new buildings or other developments. The present use of the land was identified as "agricultural land / fish farm". The application was accompanied by a "layout plan: proposed" (reference SST:02). This identified the "existing breeding and nursery ponds" and covered a considerably larger area for "proposed nursery pond" and ten "proposed breeding ponds". An amended plan (SST:02/A) was submitted on 6 November 2006. This included a 75 space car park within the site showing the size and the location of the bays and the reference to an entrance drawing. Two drawings showing visibility splay, road marking and signs had also been submitted.
6. On 2 November 2006 the applicant's planning consultant wrote to Bassetlaw, stating:

"With reference to the highway authority's concern over this proposal being for a mineral extraction, this is simply not the case; the primary purpose is the excavation of lakes for the breeding of fish and fishing. This will inevitably involve the excavation of material, most of which it is hoped can be redistributed throughout the site subject to the environment agency's requirement that this does not raise ground levels within that part of the site liable to flood. Any excess material will need to be removed from the site and at the moment it is not clear how much this will be or where it will be taken to. However, the strategy is to keep such material to an absolute minimum in order to minimise the cost of disposal. The excavation period will in any event be very short, unlike a mineral operation that is reliant on demand before material is removed from the site."

7. On 5 December 2006 NCC's principal officer (development control) under the heading "Highway Report on Proposals for Development" wrote:

"The parking arrangements shown on Drawing No. SST:02/A are acceptable.

We are concerned that the proposed lake covers an area of 28,500m² which means that for every metre depth of excavation 28,500m² of spoil will have to be removed. This equates to about 1425 lorry trips i.e. 2850 HGV movements […] The applicant has indicated that at this stage they anticipate that some of the spoil will remain on the site but are unable to indicate how much and where the sand/gravel will be transported to.

In the circumstances we would recommend that a planning condition should be imposed requesting details of HGV movements and routes [which] should be submitted to and approved by the Local Planning Authority prior to the commencement of any excavations.

We would also recommend that conditions be imposed requiring the right turn lane to be constructed prior to the commencement of any excavations to ensure that there is a suitable access for HGVs and the parking shown on Drawing No. SST:02/A is provided prior to the development being brought into operation."

8. On 19 December 2006 Bassetlaw granted planning permission for "use of land as lakes for breeding fish and fishing (resubmission of P/A 48/05/05)". Planning permission was granted subject to 12 conditions. I shall read conditions 1 to 4, 11 and 12:

"Conditions

1) The development must be begun not later than the expiration of three years, beginning with the date of this permission.

Reason: Comply with Section 51 of the Planning and Compulsory Purchase Act 2004.

2) No development to which this planning permission relates shall commence until the highways and access improvements, including the provision of the right turn lane and the illuminated beacon poles, have been provided in full in the manner indicated on drawings D2 05501 - 01P3 and D 205 501 - 2P3 or in such alternative manner as may have been agreed in writing by the district planning authority.

Reason: To ensure that there is suitable access into the site both to serve the development itself and to ensure that suitable access arrangements are in place to cater for HGV movement to and from the site during initial excavation works in the interests of highway safety.

3) The area shown for car parking on the approved site layout plan SST:02/A shall be laid out and hard surfaced and the car parking spaces shall be delineated in a manner previously agreed in writing by the district planning authority before the development hereby permitted is first used. That area shall not thereafter be used for any purpose other than the parking of vehicles.

Reason: To ensure adequate off-street parking in the interests of road safety.

4) No development to which this permission relates shall commence until details of all HGV movements associated with the removal of excavated material from the site, including details of numbers of movements, amounts and destinations of materials and routes taken, have been submitted to and agreed in writing by the district planning authority. Removal of materials from site shall only take place in such manner as may have been agreed.

Reason: In the interests of highway safety

[...]

11) No development to which this planning permission relates shall commence until details of existing levels and proposed levels across the site, including sections through the main ponds, have been submitted to and agreed in writing by the district planning authority. The development shall only be carried out in that manner agreed.

Reason: To ensure the satisfactory appearance of the completed development.

12) No development shall commence until details of any access roads and pathways through the site, including dimensions and means of surfacing, have been submitted to and agreed in writing by the district planning authority. Only such roads and pathways agreed shall be constructed on the site.

Reason: In the interests of the appearance of the site."

As to the other conditions, condition 5 required a scheme of boundary treatments be fully implemented "before the first use of the ponds hereby permitted". The reason was "to ensure the satisfactory overall appearance of the completed development". By condition 6 "safety / warning provisions, ie warning signs, lifebuoys et cetera" had to be agreed and "provided in full before the first use of the lakes to which this permission relates". This was "in the interest of public safety on the site".

A landscaping scheme "including planting within the ponds and banksides had to be fully implement "within nine months of the commencement of the use of the ponds hereby permitted" (condition 7). The reason for the landscape condition was "to ensure the satisfactory overall appearance of the completed development and to help assimilate the new development into its surrounding." Condition 8 prohibited "new buildings, structures (including gates, walls and fences) raising of existing ground levels" in a part of the site liable to flood.

9. In 2007 a series of applications was made for the approval of details under conditions on the planning permission. On 28 March 2007 drawing 119/05/1 was submitted "showing a section through the site, including existing and finished grounds levels as well as the depth of each lake" in respect of condition 11. A plan showing the alignment and specification of access roads was also submitted with the note:

"to provide the necessary load-bearing capacity for the roads these areas will be excavated and reconstructed to the necessary specifications."

10. On 27 April 2007 NCC's monitoring and enforcement manager, Mr Turner, questioned whether the 2006 permission permitted any form of operational development and said that, if it did, the removal of minerals required planning permission in its own right. Following a meeting Mr Turner wrote again on 15 May 2007 saying that the excavation and removal of mineral needed permission in its own right. He said that the options included submitting an application for extraction and removal from the site, carrying out "the development permitted by Bassetlaw and retain the mineral excavated on site for landscaping purposes" and investigating further how the volumes of materials to be taken offsite could be minimised. On 27 May 2007 Bassetlaw commented on the NCC letter:

"The planning permission granted related to the use of land related to fish breeding and fishing, and it followed that excavations were necessary to create lakes; indeed condition number 11 of the planning permission required the submission and agreements of levels through the site and lakes, and condition number 4 required details of vehicle movements and amounts and destination of material agreed ... Mr Turner has been copied the detailed drawings attached to your letter of 28 March 2007."

11. In May 2007 a planning application was then made by Mr Simpson to Bassetlaw under sections 73 of the TCPA 1990 for "variation of condition number 2 on planning approval number 48/07/00008 dated 19 December 2006". On 19 June 2007 NCC said that the application should be withdrawn. It said that "the development proposed on this site with the construction of fishing lakes under reference 48/06/06/R actually involved substantial mineral extraction and for that reason needed a separate planning application to NCC. Bassetlaw reported at Section 73 application to their planning committee. The report noted that condition 2 was imposed to deal with traffic movements during the excavation and construction of the lakes and their use. It reported NCC's objection but also recorded that NCC had no highway objection provided the access improvements were in place prior to the removal of material, as the applicant proposed. Officers then discussed NCC's position on mineral extraction and Bassetlaw's view that the 2006 permission allowed the removal of materials from the site. The Section 73 permission was granted on 20 September 2007 and authorised:

"variation of condition 2 of PA 48/06/06/R to allow works to commence on site prior to the highways and access improvements being provided in full."

Two further conditions were imposed. On 16 November 2007 NCC agreed details of HGV movements to take away excavated material under condition 4 while noting that Mr Turner had concerns about the export of material.

Enforcement

12. In December 2007 Kane began soil stripping on 4.3 acres of the site. A temporary stop notice and defective enforcement notice was served by NCC. Then on 9 January 2008 a further stop notice and enforcement notice ("the enforcement notice") was served. The enforcement notice alleged the carrying out of unauthorised mining operations. It was Kane's appeal against that enforcement notice that was determined by the inspector. The principal ground of appeal was that the operations did not constitute a breach of planning control (Section 174(2)(c) TCPA 1990).

The inspector's decision

13. The nub of the decision is in paragraphs 8 to 18 of the decision letter:

"Ground (c)

8. NCC is the minerals planning authority for the area of the appeal site and the relevant Development Plan policies, covering the extraction of minerals, are contained in the Nottinghamshire Minerals Local Plan 2005 (MLP). This document notes that, where development granted planning permission by a District Council involves incidental mineral extraction, this element of the proposal will need a separate planning application to be granted by NCC.

9. NCC submits that, in this instance, the proposed removal of at least 400,000 tonnes of excavated material cannot be considered small scale and therefore is unlawful unless benefitting from an extant planning permission. It also considers that a permission granted by the District Council is only for a change of use of the land and does not authorise the operation and development involved in the excavation and removal of the materials needed to create the lakes.

10. It quotes the findings of West Bowers Farm Products v Essex County Council [1995], a case that involved the construction of a reservoir for agricultural irrigation which required the extraction of large quantities of gravel. The Court held it possible that, where a development that has been granted planning permission involves a secondary activity, that activity may also need a separate planning permission depending on its scale and nature. That would be a matter of fact and degree to be determined by the decision-taker. The finding that the construction of the reservoir and the removal of the gravel were two distinct operations that fell into different planning categories clearly has a bearing on the situation in this appeal.

11. I agree that, in this case, the extent of mineral extraction could not be considered as a minor or ancillary undertaking in relation to the change of use of the land, and it would therefore need a planning permission that covered the work. The amount of material that would be excavated and transported off the site would be about four times the annual production of the smallest allocated site in the MLP and over 1.5% of the County's total production.

12. The appellants say that such consent has been granted under planning permissions 48/06/00006/R and 48/07/00008 and anyone studying the applications and decisions would realise that the construction of the lakes and the result of removal of the excavated materials from the site were proposed, shown on the accompanying drawings and referred to in, and controlled by, the attached conditions. They maintain that subsequent approval of the conditions means that there was no doubt that the council was clear about what had been permitted both in terms of the use and operational development proposed.

13. I accept that the District Council was well aware of the nature of the development that the appellants wished to carry out and knew, when discharging the conditions, that a substantial amount of material was intended to be excavated and removed from the site. The layout of the lakes was included on the plan referred to as 'approved' in condition 3 of 48/06/00006/R and the details submitted to obtain the discharge of condition 4 gave information on the extent of HGV movements involved. Those relating to condition 11 showed the depth of the proposed lakes. The appellants submit that this confirms that the operational development was, therefore, incorporated into the permissions.

14. Nevertheless, conditions attached to a planning permission can only limit the development to which they relate; they cannot expand it. The fact that the District Council has imposed and subsequently discharged the conditions does not mean that they were correctly related to the development granting planning permission, or that they were properly imposed. Whilst this does not inevitably mean that the planning permission would be invalid, as the conditions might be severable from it, similarly, it does not mean that the inclusion and discharge of the conditions have changed the nature of what has been permitted.

15. The pertinent question is, therefore, whether the operational development to which the conditions refer has been granted permission by the terms of the consent, not whether the conditions themselves have incorporated that development into it.

16. NCC argue that the planning permission and the application, if incorporated with it, are the only documents that have any relevance when determining what has been permitted. Neither specifically refers to an application for, or a grant of, any operational development. The application is 'the use of land as lakes for breeding fish and fishing', and this phrase is repeated in the decision notice as to development that has been permitted. The application form states that the proposal does not involve any development other than the change of use and the alteration of an existing access. It also states that no commercial development is proposed.

17. The description of the development refers to 'use of land as lakes...' and this has not specific meaning in planning terms. Lakes are a physical feature, not a use of land for which planning permission for a change of use could be granted. On the matter of the 'approved' drawing, it is in the form of a general, illustrative layout which shows the areas where the lakes are proposed to be created and the positions of the access to the site and the car park. This drawing is at a small scale of 1:1250 and does not give any information on the depths of the lakes. The decision notice refers to it only in the conditions and, in the absence of any other reference in the documents to the excavations for the lakes, this drawing cannot, in my view, be taken to have authorised their construction.

18. I conclude, therefore, that the planning permissions can only have granted consent for the use of the land for fish breeding and fishing. The grant of permission for a change of use alone does not permit other operational development in association with it, even if such development will be needed to implement the change of use. The creation of the lakes would be a separate operational development for which planning permission still needs to be obtained. The appeal on ground (c) consequently fails."

Grounds of appeal

14. The grounds of appeal relied on are these:

1) The inspector erred by seeking to interpret the applications rather than the planning permissions.

2) The inspector failed to consider the conditions and their reasons when interpreting the permission.

3) the inspector's interpretation of the description of the development of the 2006 permission was incorrect and absurd.

4) The inspector disregarded the approved layout plan.

5) Interpretation of the application form was defective particularly in the light of the whole application.

6) The inspector failed to consider the description of development of the relevant 2007 permission.

7) If the permissions are ambiguous, as the inspector's conclusions would imply, extrinsic evidence demonstrates that they approve the construction of the lakes.

The central question is whether the planning permission granted 1) the change of use of the land from that stated in the application form as being "agricultural land / fish farm" to "use of land for fish breeding and fishing" ("the inspector's finding"); or 2) a change of use along these lines and in addition, as Kane contends, operational development – in the form of mineral extraction -- to enable the lakes to be constructed.

The statutory materials

15. The following parts of TCPA 1990 are relevant:

Section 1.

Local planning authorities: general.

-- (1) In a non-metropolitan county --

(a) the council of a county is the county planning authority for the county, and

(b) the council of a district is the district planning authority for the district, and references in the planning Acts to a local planning authority in relation to a non-metropolitan county shall be construed, subject to any express provision to the contrary, as references to both the county planning authority and the district planning authorities.

(3) In England (exclusive of the metropolitan counties, Greater London and the Isles of Scilly) . . . all functions conferred on local planning authorities by or under the planning Acts shall be exercisable both by county planning authorities and district planning authorities.

(4) In this Act "mineral planning authority" means --

(a) in respect of a site in a non-metropolitan county, the county planning authority; and

(b) in respect of a site in a metropolitan district or London borough, the local planning authority.

[…]

"Section 55(1)

Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development," means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.

………….

Section 70(1)

Where an application is made to a local planning authority for planning permission --

(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or

(b) they may refuse planning permission.

(2) 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.

[…]

Section 73(1)

This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and—

(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and

(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.

[…]

Section 286(1)

The validity of any permission, determination or certificate granted, made or issued or purporting to have been granted, made or issued by a local planning authority in respect of --

(a) an application for planning permission;

(b) an application for determining under section 64 whether an application for such permission is required;

(c) an application for an established use certificate under section 192;

(d) an application for consent to the display of advertisements under section 220; or

(e) a determination under section 302 or Schedule 15 shall not be called in question in any legal proceedings, or in any proceedings under this Act which are not legal proceedings, on the ground that the permission, determination or certificate should have been granted, made or given by some other local planning authority.

[…]

Section 336

(1) In this Act, except in so far as the context otherwise requires [...] 'use', in relation to land, does not include the use of land for the carrying out of any building or other operations on it.

[…]

Schedule 1(1)

In this Schedule "county matter" means in relation to any application, order or notice --

(a) the winning and working of minerals in, on or under land (whether by surface or underground working) or the erection of any building, plant or machinery --

(i) which it is proposed to use in connection with the winning and working of minerals or with their treatment or disposal in or on land adjoining the site of the working; or

(ii) which a person engaged in mining operations proposes to use in connection with the grading, washing, grinding or crushing of minerals;

[…]

3(2) The functions of a local planning authority of determining any such application as is mentioned in sub-paragraph (1) which appears to the district planning authority to relate to a county matter shall be exercised by the county planning authority."

Principles of interpretation of planning permissions

16. Principles on the interpretation of planning permissions were summarised by Keene J, as he then was, in R v Ashford Borough Council ex parte Shepway District Council [1999] P and CR at 19-20:

"1. The general rule is that in construing a planning permission which is clear. unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions…

2. This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the

Application…

3. For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as '... in accordance with the plans and application ...' or '... on the terms of the application ...', and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted…

4. If there is an ambiguity of the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity ...

5. If a planning permission is challenged on the ground of absence of authority or mistake. It is permissible to look at extrinsic evidence to resolve that issue…"

17. In Barnet v Secretary of State for Communities and Local Government [2008] EWHC 1601 (Admin) and [2009] EWCA Civ 476, Sullivan J, as he then was, at first instance said (para 24 ) that:

"a grant of full planning permission for building operations is incomplete without the approved plans and drawings showing the detail of what has been permitted. In the absence of any indication to the contrary, those plans and drawings will be the plans listed in the application for permission."

However, the Court of Appeal made clear (para 21) that this did not apply where the permission was for "a change of use... not one concerned at all with permission for building operations where detailed drawings would be necessary."

18. Planning permission is granted on an application and its terms are as governed by the application, in the sense that the authority have no power unilaterally to achieve through permission any substantial alteration in the development proposed by the applicant, though of course planning permission may be granted for less than that applied for (see Planning Encyclopaedia P70.70 and the case law there cited).
19. Planning permission can be granted subject to conditions (see Section 72 TCPA 1990); such conditions though cannot fundamentally alter the proposed development (see Planning Encyclopaedia P72/10). In Pye v Coventry City Council ex parte Arrowcroft Plc [2001] PLCR 113 Sullivan J said:

"I consider the approach in paragraph 72.06 of the Encyclopedia is a useful starting point. It is as follows, so far as material:

'A condition may have the effect of modifying the development proposed by the application provided that it does not constitute a fundamental alteration in the proposal'.

30. A number of cases are then cited in which it was decided that various conditions requiring, for example, off-street car parking, suitable visibility displays or deleting a proposed means of access, had not constituted fundamental alterations in the proposals that were being placed before the planning authority. The passage continues:

'Similarly, a condition may scale down the applicant's proposals and permission may be granted in a suitable case for part only of the development for which approval is sought or in respect of part only of the land to which the application relates.'"

In the commentary on the PLCR report one finds the following at letter C3:

"Although Sullivan J does not refer to the decision [this is the Wheatcroft principle, as in the case of Wheatcroft v Secretary of State for the Environment [1982] JPL 37], Forbes J held that conditions could not be imposed on a planning application that had the effect of allowing development that was different in substance from that which was applied for. Thus in the present case the application was for (among other things) one large variety store; the condition would require six separate non-variety food stores."

20. Whilst Section 73 applications (ie the application which governed the 2007 permission) are commonly referred to as applications to "amend" the conditions attached to a planning permission, a decision under Section 73 leaves the original permission intact and unamended and results in the granting of a whole new freestanding permission. Section 73 does not empower the local planning authority to rewrite the original permission altogether (see Planning Encyclopaedia 73.06 and the case law therein cited, in particular Ex parte Arrowcroft).
21. There is a fundamental distinction between two different forms of development, namely the "carrying out of building, engineering, mining or other operations in, on or over land" and "the making of any material change in the use of any buildings or other land" (Section 55 and Section 336(1), which I have already cited).

The interpretation of the 2006 permission

22. The claimant's submissions are as follows. The correct interpretation of the planning permissions is that they authorise the constructions of lakes / ponds as shown on the approved layout plan to the levels determined under condition 11 for the following reasons:

the description of development in the 2006 permission was for the use of land as lakes. To use land as lakes there must be lakes; and where those lakes do not exist then permission authorises their provision.

The conditions and reasons for conditions on the 2006 permission identify onsite works, including the excavation of materials and the levels of the ponds. The expressions "lakes" and "ponds" are used interchangeably in the application and permission.

The approved layout plan shows the new lake / ponds.

If it is incorporated into permission the 2006 application form describes the development as the "use of land as lakes", which therefore seeks consent for the construction of those lakes, especially as the present use of the land is described as "agricultural land/fish farm" and both existing and proposed ponds are shown on the layout plan. That the application form ticks "no" to other development does not limit what is sought.

If the permission in ambiguous then extrinsic evidence shows that the application included the construction of the lakes. Everyone, including most of the time NCC, considered the applications to include the construction of the lakes and removal of excavated material from the site.

23. In support of these points, which cover grounds 1-5 and 7 of the grounds of appeal, the claimant submits that the inspector's interpretation of the development was absurd since it determined that use does not include the operational development necessary to carry out the use rendered the planning permission useless.
24. As to the application form, the claimant submits that the form was strictly not incorporated into the planning permission, as the permission said that the applications had been considered but did not say that permission was in accordance with them (Ashford principal 3). The form was marked alternately as "not including the other development" and "including other development". The appellant submits that minor imperfections in application forms are fairly common. The interpretation of the application must include the description of development, the description of the present use as "agricultural land/fish farm" and the layout plan, which together mean that other operational development is applied for. To achieve the use sought, operational development would have to be carried out to construct the lakes. Interpreting the permission, including the application document, reinforces that conclusion, as the conditions could not be more explicit.
25. Finally on ground 7, whilst the claimant's position is that permissions sought are unambiguous, they say that if the inspector's interpretation is a possible one then the permissions must be ambiguous. In those circumstances the extrinsic evidence is that the application and permission included the construction of the lakes. The inspector accepted that the applicants and Bassetlaw considered that the planning permission included the construction of lakes. The correspondence in the 2007 committee report is clear about their positions, so the wider material resolves any ambiguity and demonstrates that the applications and permissions included the construction of lakes. Indeed, the claimant says that there is no suggestion that any third parties were in any doubt that the construction of lakes was proposed under those applications. NCC's highways department accepted that construction was proposed and the primary point being made by NCC's enforcement officer was that an application for mining operations should have been made to NCC.
26. I do not accept the submissions for the following reasons: 1) It is relevant in interpreting the 2006 permission that if it were construed as permitting operational development, that development would involve mineral extraction. In a non-metropolitan county such as Nottinghamshire, NCC is the county planning authority, whilst the councils of the districts are the district planning authorities for the districts within the county (Section 1(1) TCPA 1990). Although section 1(3) provides that all functions conferred on local planning authorities are exercisable both by county planning authorities and district planning authorities, Schedule 1 has effect as to the exercise of particular functions. By paragraph 1 of Schedule 1 a "county matter" includes the winning and working of materials in on or under land whether by surface or underground working, and by paragraph 3(2) the function of determining an application for planning permission relating to a county matter shall be exercised by the county planning authority. In other words, in Nottinghamshire, applications for planning permission for the winning and working of materials are to be determined by NCC, and I accept the submission that this is relevant to the interpretation of the permission, if not to their validity (see section 286(1) TCPA 1992).
27. What was granted was a "use". "Use" is defined by section 336(1) TCPA 1990 as not including the use of land for the carrying out of any building or other operations on it. Planning permission for change of use and a grant for "use of land as lakes for breeding fish and fishing" does not therefore give permission to carry out works incidental to the change of use. In Wivenhoe Port Limited v Colchester BC  [1985] JPL 396 the Court of Appeal held that a planning permission authorising the change in use of land to use for warehousing and open storage of timber and timber goods did not authorise any operational development such as the erection of a warehouse building. It is important, I am afraid, that I read at length from the transcript of this case. The case is reported at [1985] JPL 396 but in the third person, and counsel have all relied upon the transcript, which is 10 May 1983. The leading judgment of the court, with which the other two Lord Justices agreed was given by Oliver LJ, who said this:

"This is an appeal from a judgment of the Vice Chancellor given on 16 July 1982 refusing certain declarations regarding the validity and effect of the planning permission sought by the plaintiffs/appellants against the defendants/ respondents, the Colchester Borough Council. Shortly, the case concerns an area of land at Wivenhoe in Essex on the River Colne where the appellants operate a port. On 20 June 1966 planning permission was granted to the appellants' predecessors in title on the face of it permitting a change of user of the land. The issue is whether the appellants as a result of that permission are entitled in addition to the permitted change of use to erect a warehouse or other buildings on the land pursuant to the permission given they sought a declaration to that effect before the Vice Chancellor and their entitlement was denied by the respondents on two grounds: first of all that the planning permission on its true construction authorised a change of use and only a change of use and did not and does not authorise the erection of any building on the land ... The learned Vice Chancellor held as a matter of construction that the planning permission did not extend to the erection of buildings and it thus became unnecessary for him to decide the second point ...

I turn therefore to the crucial document in the case the planning permission itself. As I have said, it was dated 20 June 1966. It is addressed to the secretary of J Gliksten and Sons Limited who were the appellant's predecessors care of a well-known firm of surveyors and it reads :

'in pursuance of the powers exercised by them as local planning authority the county council of Essex having considered your - [and then there is the printed word 'outline' which has been deleted ] - application to carry out the following development'

And then there is in type:

'the use of 35 acres of land adjoining Woodland How Shipyard and the River Colne, Wivenhoe for warehousing and open storage of timber and timber goods in accordance with the plan ... accompanying the said application do hereby give notice of their decision to grant permission for'

And then there are inserted in type the following words:

'the use of ten acres of land shown hatched green on the plan accompanying the notes of decision at Rowhedge, Ferry Road, Wivenhoe for the warehousing and open storage of timber and timber goods subject to compliance with the following conditions'.

There then follow three conditions. The second relates to access and the third to heights of materials and I need not I think read those. The important one for present purposes is the first condition which is in these terms:

'The development hereby permitted may only be carried out in accordance with plans and particulars which shall previously have been submitted and approved by the local planning authority showing the layout of the site with adequate internal road circulation"

And here there follow these important words:

"The siting design superficial floor area and external appearance of any buildings to be erected and the means of access thereto"

... Nevertheless Mr Barnes submits ... what the permission on the face of it does is to grant permission for two quite separate uses that is to say the use of land for warehousing [keeping in a warehouse of timber and timber goods] and the storage of timber and timber goods in the open. He accepts that 'warehousing' is a word of wide importance. For instance, for Customs and Excise purposes a warehouse man is not necessarily someone who stores goods under cover but here, he says, the distinction is deliberately drawn between use for warehousing and use for storage in the open. Since here it is common ground that the land had in fact no buildings on it at the material time the specification for use for warehousing is, it is argued, meaningless unless it involves also a permission to erect that, without which the permitted use cannot be carried out. That, Mr Barnes, concedes might be more difficult to sustain if permission stood alone, for the words of permission refer only to an application for permission for 'change of user' but he argues when you combine that with the condition numbered 1 the inference is irresistible that permission to use the land carries with it a permission to put up buildings. The conditions state in terms that 'the development hereby permitted' can only be carried out after approval of the plans. On any other hypothesis he suggests the condition is meaningless.

In his affidavit Mr Souter, the borough planner, explains the condition as being merely informative, that is to say its purpose, he says, is to draw attention to the fact that, although the user is permitted, a further permission will have to be sought for buildings to be put up but as Mr Barnes points out that is not what in fact it purports to do. The condition does not draw attention to the need for a further permission but to the need to obtain approval of plans for the development "hereby permitted". The points in the end are fairly short ones and to some extent like all questions of construction I suppose one of impression. In terms Mr Barnes accepts that it turns solely on the use in the application for permission and in the permission itself, with the word 'warehousing' not as expanded by the condition but, as Mr Barnes would put it, as clarified by the condition. The learned Vice Chancellor declined to give the appellants the declaration they sought, on two grounds: first that the interpretation for which the appellants contend took insufficient account of the statutory background and in particular of the distinction which is drawn in the planning legislation between development consisting of a material change of user of land and development consisting of the carrying out of operations on land ...

As regards the statutory background of the matter the Vice Chancellor in his judgment said this:

'Ever since the Town and Country Planning Act 1947 the definition of 'development' which is at the root of all planning law has fallen under two heads. First there is the carrying out of building engineering mining or other operations in on over or under land. Second as an alternative there is 'the making of any material change in the use of any buildings or other land'.

Then he goes on:

'Planning authorities in granting planning permissions must be taken to be well aware of these definitions and so must the members of all professions who deal with planning matters. It is against that background that one must consider the recital in the planning permission of the application 'carry out the following development'

And he then quotes the words which I have already referred to from the planning permission. He then goes on.

'I can well see that the word 'warehousing' implies that there will be a building which the warehousing can be affected and of course the reference in condition 1 to 'in particular showing the siting design superficial floor area and external appearance of any buildings to be erected and the means of access thereto' implies that buildings will or may be erected yet all that is permitted is the 'use' of the land for warehousing. There is nothing which in terms gives permission for the carrying out of building ... operations on the land or any other words to that effect. It is indeed an unhappily worded planning permission but in that respect it is not unique.'

A sentence later he goes on:

'I do not see why a local planning authority should not determine that the land is suitable for use for warehousing purposes although those purposes cannot be carried out until some building or buildings have been erected in which it can be done. The erection of that building or buildings must of course be the subject of a planning permission before the erection can begin but the fact remains that planning permission is phrased in the terms of use and use must at least prima facie bear the importance and well known meaning in which the Town and Country Planning Act 1971 and the previous acts have given to that word.'

Mr Barnes criticises this as a conclusion because he says that a planning permission is a statutory creation which either is or is not a permission. If all that was contemplated was some sort of general approval of the use of land for warehousing, never mind if permission was given to put up a warehouse, then it is not a planning permission at all. It is a mere intimation of a future intention for which there is no statutory warrant. That may of course be so but it is, so it seems to me, no more than saying that quoad user as a warehouse the document may be ineffective.

Mr Barnes' second criticism is that it is wrong to apply the statutory test to the word 'user'. The test you should apply is to look at the permission and ask yourself what as a matter of common sense an ordinary reasonable person would assume when reading this permission. That brings me really to the second point upon which the learned Vice Chancellor decided the case. His second reason, Mr Barnes submits, ignores the force of the condition. If the permission itself is vague and uncertain, it is so because it contemplates the uncertainty of being cured by compliance with the condition. What the Vice Chancellor said was this:

'Even if on a fair construction of the planning permission it is offered a choice between merely permitting a use and on the other hand permitting the erection of warehouse buildings I find it difficult to see what buildings it permits to be erected, how many buildings, how large in area and cubic capacity, how high, situated on what part or parts of the ten acres. Such permission would be the blankest of all blank cheques. The planned company says that all this will have to be spelt out in the plans and particulars envisaged by condition number 1 yet on the face of the planning permission the application was not an outline permission for the printed word 'outline' in front of 'application' which twice appears on the planning permission has been struck out on each occasion. As a permission to erect a building or buildings the planning permission has for me a striking air of unreality about it which would be at once apparent to anyone who knows anything about planning law'.

Of course I see the force of Mr Barnes' argument but it has to be accepted that if this was intended as permission to carry out building operations and was not an outline permission, it was to say the least of it a highly unconventional document. I turn back therefore to the statutory background. As Mr Sullivan for the respondent has pointed out, the distinction between development consisting of a change of use and development consisting of carrying out operations on land goes right back to the inception of the planning legislation. The two types of development are quite distinct and it is established by a decision of this court if indeed authority would need to be on the terms of section 290 that 'use' does not include the carrying out of alterations operations which alter the land...

One must assume therefore at the outset, Mr Sutherland submits, that when a local authority issues a permission employing the statutory term of 'use' it does not intend that term shall be employed in some other non-statutory sense. Mr Barnes indeed, I think, felt bound to concede that his construction involves attaching to the word in the permission a significance wider than that which is attached to the same word in the statute, but he says that it is simply a matter of applying the ordinary dictionary meaning to words and one has to look at the words against the statutory background, no doubt because in the light of what an ordinary person looking for permission would construe it as doing in order to support his construction. Therefore one has, I think, to start with the assumption that both the applicant for permission and the local authority were using the word in some secondary and non-statutory sense and that, I am bound to say, appears to be to be unlikely.

Building from that Mr Sullivan takes two points. In the first place he says that the terms of section 29(1) of the Town and Country Planning Act 1971 would make it clear that the only power to grant a permission is in response to an application, a contention which Mr Barnes does not controvert. I will refer briefly to that subsection, which is in these terms:

'Subject to the provisions of section 26 to 28 of this Act [which do not matter for present purposes] and to the following provisions of this Act, where an application is made to a local planning authority for planning permission, that authority, in dealing with the application, shall have regards to the provisions of the development plan, so far as material to the application, and to any other material considerations, and –

a) subject to sections 41, 42, 70 and 77 to 80 of this Act, may grant planning permission, either unconditionally or subject to such conditions as they think fit;

or b) may refuse planning permission'

Thus Mr Sullivan argues, although the planning authority may grant less than is sought, it cannot grant more than is applied for. If therefore this is an application for a change of user and that is what is recited in this permission, there is no statutory power to grant on that application permission to erect buildings. Secondly, and this really follows I think from Mr Sullivan's first point, he submits that although the local authority may cut down or qualify the grant of an application by imposing a condition, it cannot by a condition enlarge that which is qualified into something which it is not. Of course, he concedes that in order to be valid the condition must raise the development which is permitted but it does not follow from that that what you must do is to construe the permission by expanding its fit to the condition. Again, Mr Barnes does not really contest this. What he says is that you have to look at the document as a whole and that the condition, whilst it cannot expand the permission which is granted, can at least clarify it. One comes back, I think, to this. His construction does involve attributing to the word 'user' a significance which involves a non-statutory enlargement of the term. Mr Sullivan accepts that there is no such thing as a permission that is not a permission but merely a prediction of some future approval in principle, but the inference that he draws is that he simply leads to the conclusion that the reference to warehousing and the permission and to buildings in the condition, whilst no doubt unsatisfactory, have to be treated merely as surplusage. They cannot justify, he suggests, straining the permission so as to conflict with what he submitted is a fundamental distinction in planning law between a change of user and the carrying out of operations on the land ...

The Vice Chancellor found it unnecessary to express a concluded view of the admissibility of the application as an aid to construction because he felt able to construe the planning permission without its assistance, but for what it was worth he found that inadmissible. The application in the instant case supported the view which he had formed and speaking for myself I agree. Despite Mr Barnes' very clear and constructive arguments, I find myself unable to conclude that this permission either did or could as it were by an accidental side wind confer a permission to develop the land by carrying out building operations. I quite accept Mr Barnes' logical application of the word 'warehousing' is a word which, taken in conjunction at any rate with the condition, imports the use of a building, but I do not myself feel that that indication is strong enough to overcome the clear use of the word 'user' in both the application and in the permission. It is therefore, I think, unnecessary in the light of that to decide strictly speaking where it is permissible to look at the underlying application.

In the instant case it seems to me that the construction of the permission does in fact raise questions not simply of interpretation but to some extent a validity which may depend upon the application. If I were compelled to express a view, I think I would be in favour of the view that in such cases it would be right in any event to look at how the application for the permission ought to be construed. In the ultimate analysis it may perhaps depend upon whether there can be said to be any ambiguity in the word 'warehousing'. Mr Barnes submits that there is not, in the context of the appearance of the word in this permission, preceded by the reference to 'user'. I do not feel that I can agree with that. It is not, I think, internally apparent on the face of the document that there were not any buildings on the land because the plan is in fact merely an extract from an Ordnance Survey map, which may indeed have been published many years before. It would seem to me therefore appropriate if it becomes necessary, which I do not think in fact it is, to look at the application as an aid to construction because, as I have said, it may well be that the validity of a permission as a permission to erect buildings will depend whether an application has been made for that purpose".

28. Wivenhoe reinforced the importance of the statutory distinction between "use" and "development" in interpreting a permission. It is therefore highly material, although not determinative, that permission here is for "use" even if it contemplated "lakes". However, as the Vice Chancellor said in Wivenhoe, the word "warehousing" in the permission implied building a warehouse, yet he found that all that was permitted was the use of land for warehousing and nothing which in terms gave permission for the carrying out of building operations.
29. Wivenhoe is predicated upon the premise that conditions cannot enlarge the grant although they might clarify it. I also accept that I must have regard to the conditions in construing the permission (Ashford). In Wivenhoe the conditions, whilst no doubt unsatisfactory, had to be treated as merely surplusage. They could not justify straining the permission so as to conflict with the fundamental distinction between change of use and carrying out of permissions.
30. This fundamental distinction between use and operations which informed the decision in Wivenhoe is a powerful factor in the interpretation. This is particularly so when one bears in mind the words of Lord Scarman in Pioneer Aggregates v SSE [1985] AC 132 that:

"planning control is the creature of statute. It is an imposition in the public interest of restriction on private rights of ownership of land."

31. When I look at the words of the grant, ie "use of land as lakes for breeding fish and fishing", I do not, against the statutory background, interpret that as permitting operational development. The conditions do presuppose operational development but, as in Wivenhoe, I do not accept that it is permissible to allow them to change the clear meaning of the grant.
32. There is no doubt that the permission as in Wivenhoe was very unhappily worded. Indeed this construction leaves Kane with practically nothing useful from the grant, but I do not regard the construction as absurd, any more than the Court of Appeal's construction in Wivenhoe was absurd.
33. As to the plan, although based on paragraph 1 of the Court of Appeal's decision in Barnett it is not possible to consider it if the permission is for change of use, I am prepared to have regard to it in order to determine whether there was merely permission for change of use or operational development. I note that it was referred to only in condition 3 of the permission. More importantly, I accept what the inspector said at paragraph 17 of the decision letter which I have already cited: also cf what the Vice Chancellor said in Wivenhoe in the last paragraph at page 4 of the transcript (already cited).
34. Whether I can look at the application for planning permission is a moot point. Ashford says "no" unless the planning permission incorporated it by reference. I have reached my decision without regard to it. However, if NCC/Secretary of State are right that the application form was so incorporated because of references to the application form on the permission and because it is a public document, the application is for change of use only.
35. The conditions, as in Wivenhoe, may well be surplusage. Mr Straker  QC submits that they might fulfil a role because they may look forward to a future event which may require further permission. Nevertheless I base my decision on the grounds that they are surplusage.
36. I do not as a result of the above regard the construction of the 2006 planning permission as ambiguous and therefore ground 7 of the grounds of appeal is irrelevant and extrinsic evidence is inadmissible.

The 2007 permission

37. The claimant submits that condition 2 on the 2007 permission also identifies excavation works under "removal of materials" and the description of the development in that permission is for on-site works.
38. As to this, I accept the respondent's case which in summary is:

i) The 2007 application was pursuant to section 73 TCPA 1990 and related solely to the variation of the inhibition-containing condition 2 of the 2006 permission.

ii) Since the interpretation of the 2006 permission in my judgment authorised only a change of use and not operational development, the 2007 permission could not change that.

iii) Section 73 does not empower the planning authority to rewrite the original permission (see paragraph 21 above). Although that is strictly a validity point it is also an aid to construction, since there is a presumption that the permission was validly granted, although I recognise on the other hand that, on this construction, it may well have been worthless.

Conclusion

39. The inspector was correct in her decision that the 2006 and 2007 planning permissions did not grant permission for operational development but only for change of use. Therefore the appeal will be dismissed.

MR HARWOOD: My Lord (inaudible) I seek an order for the summary assessment of our costs. My Lord have you got a copy of our schedule…

JUDGE STEWART: Yes

MR HARWOOD: ... of costs? My Lord, you will see that the overall figure was £13,075.10. I do not know if my learned friend has any objections to the amounts or ...

MR STRAKER: My Lord, we don't resist the principle of paying the Secretary of State's costs. In terms of the amount it is on the high side

JUDGE STEWART: I have only got one schedule.

MR MAURICI (?): I will pass one around.

JUDGE STEWART: I don't have one from Nottingham.

MR STRAKER: I am sorry. My Lord, your Lordship does not have a schedule from me and I apologise for that but at the time it wasn't actually done. My Lord, I would make an application for costs but of course the position, as far as I am concerned, in relation to costs, as your Lordship will know, is that I don't make an application for costs so to speak to say please can I have my costs, rather than the Secretary of State. It would be additional, and the position is ordinarily one whereby someone in my position as an interested party, with the Secretary of State defending the decision, doesn't get his costs. However, the position is one whereby if there is a special interest whereby one can point to some particular matter which warrants the county council or someone in the position of the county council attending before your Lordship, then one can properly apply, as I do, for costs and the special interest which I point to in the proceedings. Your Lordship will know these proceedings were founded on an enforcement notice and a stop notice. The stop notice has the consequence of preventing Kane Construction doing what they would otherwise wish to do at the site, the extraction, and the stop notice has this effect whereby if the stop notice is overturned on the basis that there was a planning permission which enabled them to carry out the work then compensation is payable. And it has been indicated by Kane Construction to the county council that the compensation would be sought and that compensation would be substantial, so that consequently the county council have an identifiable and different interest from the Secretary of State, whose interest of course was in defending the decision of his inspector. The county council have an interest in appearing before your Lordship because the stop notice, had it been got shot of on the basis that planning permission was not required, carries under the statutory regime an obligation by Nottinghamshire to pay compensation, which had been indicated by Kane Construction would be substantial, on the basis that they were not for a period of time able to extract and carry out the minerals that they wished to extract.

So that is why I ask for my costs but, as I say, I apologise we did not actually do a schedule, so it would have to be a matter, I am afraid, my Lord, if your Lordship were with me on the application, of the matter being for assessment or otherwise to be agreed.

JUDGE STEWART: Not necessarily. I could adjourn it to myself.

MR STRAKER: Your Lordship could do so, your Lordship could do so.

JUDGE STEWART: If I agree to it in principle with probably, unless there is correspondence which explain the contrary, Nottingham picking up the bill for the extra day on the ....

MR STRAKER: My Lord, yes, or my Lord I presume that it would be possible to do it, if I may put it loosely, on a correspondence basis whereby we sent in a document which said "This is the best estimate we can of our costs" and my learned friend responded to that by saying "No, we think it should be less" and your Lordship reaching a view. That may be a possibility ....

JUDGE STEWART: Possibly.

MR STRAKER: But my Lord, as I say, it can be done, in one of those varieties of ways, but it does depend upon your Lordship in the initial place accepting my application, which, as I have indicated, was predicated upon the basis which I put forward to your Lordship.

JUDGE STEWART: Thank you. What do you say about the principle first? Nottingham?

MR HARWOOD: No objection to the Secretary of State's costs in principle. There is the question on quantum.

JUDGE STEWART: Yes. That is just nuts and bolts, which I will deal with yes.

MR HARWOOD: Nuts and bolts ... can I deal with the county council application first of all, which we resist on principle. Can I start by saying that it comes as a complete surprise. We had absolutely no warning of this. There should have been a costs schedule not simply in terms of working out the costs today but I certainly do not have a copy of the House of Lords decision in Bolton, which is the critical decision on a second order for costs, to hand, because there was no warning of this application being made. In broad terms the principle established by Bolton is that the normal rule is there is simply one set of costs, a second set can only be ordered (inaudible) special interest (inaudible) more to a case

JUDGE STEWART: Does nobody have a copy of the relevant authority? Because I prefer to see it.

MR HARWOOD: I don't have. It is not in the extracts (inaudible).

JUDGE STEWART: Is it referred to in the White Book?

MR HARWOOD: There is some reference to the case in 54.16.7 on page 1700 in the 2010 ...

JUDGE STEWART: 1700?

MR HARWOOD: Yes, my Lord.

JUDGE STEWART: The courts do not generally order an unsuccessful claimant to pay two sets of costs. The court may award two sets of costs where the interested party deals a separate issue not dealt with by the defendant, which isn't really the case here, or where the defendant and the interested party have separate and distinct interests which require separate representation, which I think is what is being said here.

MR HARWOOD: Yes

JUDGE STEWART: Can you give me a moment because there is another reference at 48 14.6, I think. Probably says the same but just in case. (reads) Right, it seems as though the principle is that they have got separate and distinct interests which requires separate representation, which they say they have because if the stop notice had been overturned you've got a compensation claim lurking.

MR HARWOOD: My Lord that is the submission that is made. There's no definition (?) put on it by the county. In terms of the issue for this case the question is still the same as to whether or not the enforcement notice was correct, and that is an issue which the Secretary of State took a view on and decided to (inaudible). The Council's position in that respect (inaudible) section 289 proceedings the only difference in the County's position is that the consequences for the council ....

JUDGE STEWART: I am sorry. Unless Mr Straker is going to come back to what you have said so far I think there were some separate interests but I am not persuaded they required separate representation

MR HARWOOD: My Lord, well ...

JUDGE STEWART: In that case that fail, but Mr Straker may want to say something more.

MR STRAKER: Well, my Lord ...

JUDGE STEWART: That is the way I see it at the moment.

MR STRAKER: Well, my Lord, it is a matter for your Lordship and, my Lord, as I say , the basis is that separate interest and I cannot put it any differently from the way I put it whether as I initially did it or by way of preliminary response to my learned friend. Your Lordship has the point and your Lordship is able to deal with it and has indicated the position.

JUDGE STEWART: Yes well I think that although there were separate interests I am not at all persuaded they required separate representation. It seems to me on the reading of the notes to 54.16.7 that it has got to be both.

MR STRAKER: I am much obliged, my Lord.

JUDGE STEWART: Thank you. Right so we just ... so there is no order as to costs in relation to Nottingham and right ...

MR HARWOOD: The Secretary of State's costs

JUDGE STEWART: Yes.

MR HARWOOD: My Lord, the point on the Secretary of State, my Lord, may have seen the claimant's costs schedule. The claimant's costs are higher. There is nothing unusual about that because practically we have a lot more to do and non-Treasury counsel rates are also higher, but in terms of the Secretary of State's costs I just have one criticism of this. £30,000 is quite a lot for this case, particularly a case where relatively little documentation, which is the level of costs and work done on documents.

JUDGE STEWART: The last one of these I did had a schedule of £74,000

MR HARWOOD: My Lord, there have been some very high schedules but in terms of .... all the Secretary of State had to do here is produce any evidence, simply respond to the material which we produced and any documents the Secretary of State has produced on correspondence is not in my learned friend's skeleton, so for some 15 hours to be spent in work on documents does seem to us to be excessive. It may be appropriate to reduce that to 5 or 6 hours.

JUDGE STEWART: Right, so that issue is work on documents.

MR HARWOOD: I am sorry, my Lord, that point seems to be excessive. Otherwise are no particular issues on the schedule.

JUDGE STEWART: Mr Maurici, what do you say about the work on documents?

MR MAURICI: Well, my Lord, can I just say that when ... first of all in terms of the overall costs your Lordship will see that our costs are less than half those of the claimant in their schedule. My Lord, in terms of work on documents, my Lord, that figure always includes in relation to the Treasury Solicitor's costs an advice on the merits which is written by Treasury Solicitors when they see the documents for the client. My Lord, that is a standard part of the practice, so 12.7 hours would be work on documents but would also include effectively written advice to the planning inspector and the Secretary on the prospect of success for the defendant in the appeal. In the circumstances 12.7 hours is not an excessive amount of time to spend looking at papers researching issues and writing advice.

JUDGE STEWART: So were they represented, they were represented at the inquiry weren't they?

MR MAURICI: No.

JUDGE STEWART: Oh they weren't.

MR MAURICI: No, the Treasury Solicitor's department, they don't, my Lord, so effectively the case is entirely new.

JUDGE STEWART: I can see that, yes.

MR MAURICI: Yes my Lord, which is of course another reason why, my Lord, there is often a figure something like 12.7 hours of documents because the Treasury Solicitors are seeing the whole thing for the first time. My Lord, in those circumstances 12.7 hours is not an excessive amount of time and there will obviously be work on documents is far, far higher in the claimant's...

JUDGE STEWART: Yes, that is completely different work on documents though isn't it?

MR MAURICI: True, it is. Although of course they have (inaudible). My Lord, in any event…

JUDGE STEWART: It doesn't mean to say I would have allowed theirs (inaudible)

MR MAURICI: No, that's true, my Lord. So my Lord my overall point is 12.7 hours in the circumstances of seeing a case for the first time (inaudible).

JUDGE STEWART: Do you want to come back, Mr Harwood?

MR HARWOOD: Only to say this, my Lord that if my learned friend's relying on advice from TSol, there is quite a lot of advice also from my learned friend. In fact there seems to be a lot of advising carried out.

JUDGE STEWART: I think most of his…He had an advising (inaudible)

MR HARWOOD: It seems to me (inaudible) six hours attendance counsel, £2,400 on advising on documents (inaudible).

JUDGE STEWART: I was not going to do anything but you just persuaded me to take. .. to knock the 12.7 down to 10. OK. On hearing counsel for the appellant/fourth respondent, counsel for the first respondent, leading counsel for the third respondent and on .... I am sorry second respondent, and upon the third respondent not appearing, it is ordered 1) the appeal be dismissed, 2) there be no order as to costs save that the appellant/fourth respondent do pay the first respondent's costs summarily assessed at...

MR HARWOOD: I think it's £12,605.10. Is that right? £12,605.10.

JUDGE STEWART: £12,605.10. Do you want me to read that out again because I was mumbling to myself? It reads as, unless you tell me to the contrary, upon hearing counsel for the appellant/fourth respondent, counsel for the first respondent, leading counsel for the second respondent and upon the third respondent not appearing it is ordered 1) the appeal be dismissed, 2) there be no order as to costs save that the appellant/fourth respondent do pay the first respondent's costs summarily assessed at £12, 605.10. Right. Could I just hand down the bundles. Thank you all very much, thank you.