Case No. CO 3665/97
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

Royal Courts of Justice
Strand
London WC2

Date: Thursday, 14th January 1999

B e f o r e:

MR JUSTICE CARNWATH

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REGINA

and

TANDRIDGE DISTRICT COUNCIL

EX PARTE MOHAMED AL FAYED

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(Computer‑aided Transcript of the Stenograph Notes of
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MR I CROXFORD QC and MR R SINGH (instructed by Halsey Meyer Higgins, London SW1E 6AE) appeared on behalf of the Applicant.

MR N KING (instructed by Tandridge District Council, Surrey RH8 OBT) appeared on behalf of the Respondent.

MR D PANNICK QC and MR A GRIFFITHS (instructed by Freshfields, London EC4Y 1HS) appeared on behalf of Mercury Personal Communications

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J U D G M E N T

MR JUSTICE CARNWATH: This is an application to quash a decision of the Tandridge District Council by which they granted planning permission for the erection of a radio telephone base station tower at a site called the Oxted Quarry in Surrey.
     The Applicant is a local resident who fears that he would be affected by the station. The background is this: the application for planning permission was made by Mercury Communications PLC, on 1st May 1997, through their agent Stappard Howes Associates. The council gave notice to people living in the vicinity in order to give them an opportunity to make objections if so minded.  Solicitors for Mr Al Fayed submitted objections on 4th June 1997, these raised various matters of concern but included the following:
"Our client's main concern relates to the electro magnetic and radiation fields and waves emitted by such antennae and their associated equipment.  In particular our client is very concerned at the possible health hazards for people living in the immediate locality which it is thought may now be associated with these types of equipment and emitted radio energy.
 
The position is still so unclear that the European Union has set up an Enquiry to look into this very point.
 
We enclose with this letter a copy of the Recommendations of the European Commission Expert Group who are continuing their research in the current absence of the essential data on both radiotelephones and, more importantly, the associated necessary antennae." 
The letter also enclosed certain material from the National Radiological Protection Board. 
     I will need to come back to the material that was included, but one item was an article in the Radiological Protection Bulletin for March 1997, written by a Dr Alastair McKinlay, who is an acknowledged expert in this field and a member of the Radiological Protection Board.  In that article he has summarised the recommendations of the European Commissions Expert Group established by the Commission in 1993 looking at the safety of radiotelephone base station antennae.
     There was also included a 1996 statement from a body called the International Commission on Non‑ionising Radiation Protection of which Dr McKinlay was the UK representative.
     Mr Al Fayed himself wrote to the leader of the council on 4th June raising similar concerns.  He said this:
"The visibility problem is not the concern.  The concern, as expressed in my Consultant's objections to the present planning application, is based on the possible danger to those living within proximity and the locality to the advent of increased interference from electromagnetic fields and from radiation. It is clear that there is very little database evidence to show whether there is, or is not, a health and environmental problem relating to such structures and their associated equipment. However, there is quite clearly concern viewed by the European Commission and they have set up, perhaps belatedly, an expert group to investigate the side effects and consequences of such new uses of technology." 
     A reply was sent by the Chairman of the Council on 5th June responding to that letter.  The Chairman said this:
"In respect of the Oxted Chalkpit mast, the Council's Director of Planning and Environment has advised me that he has received the objection letter from your solicitors.  I attach for your information an extract from the national planning guidance contained in Planning Policy Guidance Note No 8 (PPG8) on telecommunications.  Paragraphs 1‑6 set out  the general position and presumption to facilitate the growth of telecommunications systems. Paragraph 37 indicates that radiation is a matter for the Health and Safety Executive (HSE).  Radio interference is acknowledged in paragraph 38 as being a material planning consideration.
 
Your solicitor's letter has therefore been forwarded to the HSE and the Radiocommunications Agency for their comments. The Director of Planning & Environment has also written to the applicants on these points and has asked for the height and siting to be amended." 
     Unfortunately it is common ground that, although that letter says that Mr Al Fayed's solicitors' letter had been sent to the HSE, that had not in fact happened.
     The letter was, on the other hand, sent to Stappard Howes, the agents for Mercury, and comments from them were received.  On this particular issue, in their letter of 23rd June, they said this:
"The objectors main concern relates to health and safety issues. The National Radiological Protection Board is responsible for advising the Government on health and safety issues relating to radio transmission systems and has set guidelines and limits within which all radio systems should operate. These are designed to protect both the general public and workers who might come in close contact with radio transmission equipment.  One‑2‑One has a very strong commitment to health and safety and to this end have adopted limits more stringent than the guidelines recommended by the NRPB.  Your attention is drawn to paragraph 37 of PPG 8 in which it states that 'radiation safety is a matter for the Health and Safety Executive..' and on this basis is not a material planning consideration." 
 
(The last comment, that radiation safety is not a material planning consideration, is not supported by Mr Pannick, who appears on behalf of Mercury before me.  As we will see, it was omitted when this letter was referred to in the planning officer's report.) 
     There was at this stage certain discussion about the height of the proposed tower and a revised application was put in reducing it from 30 metres to 22.5 metres and reducing the number of antennae and dishes.
     The application was referred to the Health and Safety Executive, but the letter to them did not draw attention to any particular aspects for their consideration, and in particular, did not draw attention to Mr Al Fayed's objections on the basis of radiation.
     The HSE responded on 3rd July.  The letter contains a heading which refers to regulations dealing with hazardous substances and pipeline safety, and a circular dealing with planning controls and hazardous installations, but does not make any reference to PPG 8 on telecommunications.
     The body of the letter says this:
"The application has been passed to the Inspector responsible for the premises for any general comment and reply as appropriate.
 
HSE has considered the proposals and because of the nature of the development at this location there are no reasons on health and safety grounds why the application should not be permitted." 
     Mr Al Fayed also submitted further objections by letters dated 18th and 21st July.  These repeated the substance of the objections he had already made.  The second of those letters referred to a television report on Channel 5 which, according to the letter, related to the erection of a new radio antennae mast and understandable concerns of a household in its immediate vicinity. The letter says: 
"...'National Radiological Protection Board' currently now considered that further research was necessary so as to ensure that both with the proliferation of such antennae masts and the enormously increased use of mobile phones, where there are now more that 7 million users, that those residing in the close vicinity of such masts were not having their health adversely affected by the constant exposure to low levels or radio microwaves over continuous and protracted periods. The risk of cancer was particular mentioned.
 
Our client's experts have pointed out that our client's original letter of objection was apparently referred to the Health and Safety Executive for reply.  It would be important to know the views of that Executive in the light of the above apparent need for further research as envisaged by the NRPB which of course only confirms the views of the European Commission which has already set up such an enquiry as we mentioned in our client's original letter of objection concerning this possible health hazard." 
     As I have said, the understanding that the original letter had been sent to the HSE was mistaken.  Nor was this letter itself drawn to the HSE's attention.
     The matter came before the relevant committee of the council on 22nd July.  They had before them a report of the relevant officers.  That described the application proposal.  It recorded the results of consultations, including the following:
"Health & Safety Executive ‑ considered the proposals and because of the nature of the development at this location there are no reasons on health and safety grounds why the application should not be permitted." 
     Under "Planning Issues", the report referred to the National Guidance contained in PPG 8, and, in particular, to the Government's policy on telecommunications, which is to facilitate the growth of new and existing systems, subject to other planning objectives.  There was also a reference to  "the Surrey Structure Plan 1994", which contains a specific policy on communication development and:
"states that development will normally be permitted provided, in particular, a comprehensive 'network' plan has been prepared having regard to the environment of the area, and there are no other alternative sites." 
The local plan contains similar policy.
     There was discussion of the "need" for the proposal:
"The applicant has submitted extracts from the Mercury Network plan which illustrates the 'gap' which will result in the Network if the tower and antennas are not provided..." 
There was then a discussion of "Visual Impact", and finally a heading, "Health and Safety" under that heading was the following:
"Concern has been expressed by some local residents about the impact of radio signals on health, and radio interference." 
The report then quoted from the Stappard Howes' letter to which I have already referred, but omitting the suggestion that this issue was not a material planning consideration.
     There was a passage dealing with the question of interference with navigation and radiocommunications of Mr Al Fayed's helicopter.  The section concluded:
"PPG 8 at paragraph 37 stated that "Radiation safety is a matter for the Health and Safety Executive (HSE).  As part of the wireless telegraphy licensing procedures, applicants are made aware of safety requirements, and details of radio sites are passed to the HSE." 
The report recommended the grant of permission subject to conditions.  That recommendation was accepted by the Committee and planning permission was granted. It appears  that there was no specific discussion of Mr Al Fayed's objections relating to safety at the council meeting.
     That is the relevant material up to the date when the planning permission was granted.  I have, however, been referred, without objection, to subsequent matters which may be relevant to the consideration of questions of discretion.
     The role of the HSE itself has been clarified by further correspondence.  In a letter dated 23rd December 1997 they commented on their response to the application (this is in a letter to Mr Al Fayed's solicitors).  They said this:
"The Local Planning Authority did not include any documents from your company... objecting to the proposed development, when consulting this departments in June 1997. The advice given to the Local Planning Authority was based on the Department of the Environment Circular 11/92 upon which the planning application was submitted.  Hence the final paragraph of my letter dated 26th June, 1996 was correct on the information supplied and in the context under which this department was consulted.
 
The Local Planning Authority did not request any advice on radiofrequency, radiation and electro‑magnetic fields when submitting planning application [the number is given] to this department." 
For information on the HSE's current policy, it was suggested that inquiries should be directed to the Health Directorate of the HSE.
     Solicitors for Mercury wrote to the HSE on 28th May 1998.  They referred to the earlier letter of December 1997 and said:
"Our understanding of your letter is that you did not think Tandridge District Council were asking you for advice on  radiofrequency radiation look and electromagnetic fields when they wrote to you in June 1997.
 
If it had been your understanding that you were being asked by Tandridge District Council for advice in relation to safety issues associated with low level RF electromagnetic fields please would you let us know what your response would have been, both in June/July 1997 and as at the present day." 
     The response to that letter from the Agency is dated 19th June 1998.  The advice is set out as follows:
          "There are no regulations made under the Health & Safety at Work Act 1974 governing exposure to radio frequency radiation. The NRPB have published guidelines which give restrictions to avoid direct biological effects due to heating... [reference is made to a 1993 paper]
 
There are no proven long term ill health effects such as cancer associated with exposure to radio frequency radiation.  The National Radiological Protection Board (NRPB) has reviewed research into the possible association between exposure to radio frequency radiation and cancer. It concluded that the current evidence for such an association is weak and that no persuasive biological mechanism has been established for such an effect." 
     The other matter to which I should refer, subsequent to the decision, is that when leave was applied for in these proceedings, there was also sought an injunction to prevent the development going ahead pending the hearing of this application.  That was refused by Moses J.  The present position is that the radio mast has been erected and is in operation.
     I come then to the grounds of challenge.  Mr Croxford, for the Applicant, puts his challenge under three principal headings: first, misdirection/acting under dictation; second, failure to give adequate consideration to all material considerations; and third, irrationality.  In my  view, the case stands or falls on the second of those issues.  I can see no separate basis for a case of irrationality, whether on the material before the authority in 1997 or the material now available.  There is nothing arguably perverse in the authority having taken the view that the concerns raised by Mr Al Fayed were not of sufficient substance in the overall balance to justify a refusal.
     As to the first of Mr Croxford's headings, I do not, with respect, find it a very helpful way of looking at the matter in general, or on the facts of this case.  The point he makes is that the local authority wrongly thought that they were bound by the views of the HSE on this issue rather than having an obligation to exercise their own judgment. If the local authority had thought that, they would clearly be wrong (see Lavender ‑v‑ Minister of Housing and Local Government and Another (1971) WLR 1231).  There is no doubt that the decision was for then, and they could not treat it as conclusively determined by the views of the HSE.
     On the other hand, it is clearly right that on a technical issue such as this, they should give great weight to the advice of the expert bodies having particular statutory responsibility for such matters.  This is particularly so when one is dealing with what I assume is intended to be part of a national telecommunications network.  The operators of such network can reasonably expect planning decisions to be guided by a consistent and  scientifically informed national policy approach. Indeed, if a particular local authority departs from such national policy guidance and such national technical advice without good reason, it risks being overturned on appeal and being ordered to pay the costs.  An example of that, in a somewhat similar case over ten years ago, is the case of Manchester City Council v The Secretary of State for the Environment (1988) JPL 774.
     Now, of course, that approach must not be taken too far. I was referred by Mr Croxford to another case on costs, that is the decision of the Court of Appeal in Newport MBC v The Secretary of State for Wales (1988) JPL 377.  In that case the Inspector had held that the authority's objections to a proposal for a chemical waste treatment planned were not substantiated at the Inquiry, and had awarded costs against the authority.  That decision was upset on appeal by the Court of Appeal.  The case shows that, as a matter of law, an authority may take account of genuine concerns about public safety, even when they are not wholly supported by technical evidence.  However, that conclusion must be read in its context.  The ratio of that decision, as I understand it, is apparent from the end of the judgment of Hutchison LJ at page 384.  He said this:
"I accept Mr Howell's submission that the only sensible construction of the material words is that the Inspector, and therefore the Secretary of State who adopted his reasoning, was approaching the question whether the council had behaved unreasonably on the basis that the genuine fears on the part of the public, unless objectively justified, could never amount to a valid ground for refusal.  That was in my judgment a material error of law." (emphasis added) 

   Thus the Inspector erred in that case in treating the fears of the public as being of no relevance at all to the planning decision, as a matter of law. That does not mean that it would necessarily be reasonable for an authority to refuse a permission on the basis of unsubstantiated fears or, if they do so, that they are immune from the risk of an award of costs against them.
     As to PPG 8 and the reference to these matters being matters for the Health and Safety Executive, I do not read that as intended to imply that the authority are bound to follow what the HSE says, but as expressing the common sense approach that the national guidance should be regarded as having the greatest weight. I am further satisfied that the authority did not, in the event, regard themselves as bound by the HSE's views. The fact that this topic was included in the report to the Committee shows that the officers regarded it as something which should be considered by the authority.  There is evidence before me from Mr Evans, the relevant officer, and from Mr Dalrymple, the chairman of the committee, which makes clear that they understood that the decision was one for the authority.  That evidence has not been challenged in cross‑examination, and I see no reason not to accept it.
     There was some discussion of a letter from Mr Evans, dated 24th October 1997.  This was written some time after the decision, and in response to complaints made by Mr Al Fayed's solicitors.  Having referred to PPG8, he commented: 
"... Decision cannot generally be made on the basis of matters covered by other legislation.
 
Concerning'radiation safety', paragraph 37 of PPG8 specifically stated that'radiation safety is a matter for the Health and Safety Executive (HSE)'. In view of this guidance and my previous comments, it would, therefore, not be possible for the Council to refuse planning permission for telecommunications development proposals on health grounds, this being a matter for the Health and Safety Executive to consider.
 
With specific reference to your grounds for applying for leave to seek a judicial review against the Council's decision in respect of the Oxted Quarry tower, I trust you will now agree that the Planning and Environment Committee and Officers of the Council did take account of your client's detailed health objection but were obliged to reach their decision with due regard to the limitations imposed by planning law and guidance.  The 'uncertain' state of scientific understanding as to any health risks would not have been a sustainable reason for refusing planning permission under present planning law." 
 
     I accept that there are parts of that passage which suggest that the authority were precluded as a matter of law considering this matter but, on the other hand, the reference to this not being a "sustainable reason for planning permission", seems to me to be more naturally a reference to it not being one which could be defended on appeal. However that might be, that is a letter which, as I say, was written after the decision, and I have the unchallenged sworn evidence of Mr Evans and Mr Dalrymple as to how they viewed the matter.
     I come back to what seems to me the heart of
Mr Croxford's case, which is the second of his grounds.  For this he relied on the way the matter was expressed by Lord Diplock in Secretary of State for Education v Tameside MBC  (1977) AC 1015 at 1065.  He paraphrased the question as being, "did the local authority ask itself the right question and take reasonable steps to acquaint itself with the relevant information to enable it to answer it correctly?"
     Mr Croxford identified the "right question" as follows:
"(a) what is the nature of the Applicant's objection?
(b) What factual material and/or advice is available relevant to that objection, and         insofar as advice is obtained, then upon what     factual basis is it offered?
(c) what (if any) weight should be given to the objection and such factual material or            advice?" 
     Mr Croxford suggests that the answers to those questions should have been, first, that the nature of the objection was that there was material and an unacceptable risk of damage to people's health by reason of microwave radiation, in particular, caused by non‑thermal effects. The evidence in support of that objection should have been the material submitted by Mr Al Fayed (to which I have already referred) together with any other relevant scientific evidence accessible to the HSE or the NRPB and the advice of those bodies on those matters.  Finally, he says, the weight to be given to those matters was something which required a fully informed decision by the council which has not yet been made.
     I see force in Mr Croxford's complaint that the substance of his client's objection was never properly considered by the authority.  It is not I think in dispute  that Mr Al Fayed's letters raised a serious planning issue which should reasonably have been investigated before the decision. It is clear on the evidence that the authority did not investigate it themselves, because they reasonably treated it as a matter for the advice of the Health and Safety Executive; but it is equally clear that it was never in fact investigated by the HSE, because they were not put on notice that this aspect of the development was something which they had to consider. It is apparent from both the committee report and the Chairman's letter of 5th June, that the authority accepted that Mr Al Fayed's concerns justified investigation and also that they both thought the proper body to advise on this was the HSE.  The approach suggested by the Chairman of this letter was, as it seems to me, entirely reasonable had it in fact been carried into effect, but for whatever reason it was not. The HSE were consulted; but, as we now know, they were not sent Mr Al Fayed's letters nor, more significantly, the technical material which he had enclosed, and they did not think they were being consulted on this aspect. Unfortunately, that would not have been apparent to the committee when reading the officer's report.  The reference to the HSE's views, as quoted in the report, is perfectly general.  The quotation does not include the particular references in the heading to the HSE letter, which might have suggested that the HSE were not addressing this particular issue. A committee member reading that report would have assumed that the issue,  which, at the end of the report, is said to be a matter for the HSE, would have been encompassed by the general statement of the HSE which is referred to on the first page. Accordingly, it seems to me that there was a flaw in the decision‑making process. That, however, is not enough to get Mr Al Fayed home as far as substantive relief is concerned. The court will not quash a decision of this kind unless the flaw is one of practical significance, in the sense that there is a realistic possibility that the decision might have been different if the matter had been handled correctly.  Now, it is here, as it seems to me, that Mr Al Fayed's case must fail.
     I have been taken by Mr Croxford through a substantial amount of technical material on this subject, including material which was not before the committee.  It is not necessary to review the material in any detail because the overall effect is quite clear.  It is certainly the case that over the last few years there has been discussion, among those interested in the subject, of the possible effects of radio telecommunications on health.  One particular aspect has been discussion of the extent to which any such effects may go beyond the thermal effects, which are recognised, and understood.
     One sees this distinction in the material which was put before the council by Mr Al Fayed, in particular the very helpful article by Dr McKinley.  In that article dated March 1997, he was referring to the recommendations of a European  Commission Expert Group.
     He discusses the findings of the Expert Group in relation to the current state of knowledge.  Under the heading "HEALTH CONCERNS", he says this:
"Overall, the existing scientific literature encompassing toxicology, epidemiology and other data relevant to health risk assessment, while providing useful information provides no convincing evidence that the use of radiotelephones, whether analogue or digital, poses a long‑term public health hazard.  However, in view of the concern about possible biological effects of the microwave radiation used, it is important to assess the existing body of knowledge on biological effects induced by microwave radiation." 
     In relation to thermal effects, he says that the current exposure guidelines are intended to limit both whole body temperature and localised temperature, and he explains how they are expressed.  He goes on:
"Thermal effects are well established and form the biological basis for restricting exposure to radiofrequency fields. In contrast, non‑thermal effects are not well established and, currently, do not form a scientifically acceptable basis for restricting human exposure to microwave radiation at those frequencies used by hand‑held radiotelephones and base stations." 
The rest of the paper is a discussion of the state of knowledge, with suggestions for further research.
     There is nothing in any of the other material I have been referred to which appears to me to take the matter any further.  Dr McKinlay has sworn an affidavit, which is before me.  In that he explains his role within the NRPB and his expertise in this area.  He explains the NRPB's position as follows:
"Thus the NRPB concluded that its exposure guidelines were appropriately designed to prevent adverse responses to the increased heat load and elevated tissue temperature resulting from exposure to radiofrequency electromagnetic  fields.
 
Since publication of the NRPB exposure guidelines in 1993, the NRPB staff have continued to monitor and review the published scientific literature to electromagnetic fields and human health and the NRPB has, from time to time, sought further advice from its Group on non‑ionising Radiation.
 
The current position of the NRPB is that compliance with its recommended basic restrictions will prevent any adverse effect on human health due to exposure to electromagnetic fields." 
That is the authoritative view expressed by the expert body responsible for advising on this matter.  It has not been challenged by any technical evidence on behalf of
Mr Al Fayed, or in cross‑examination. Mr Croxford finds the high point of his case in a quotation from Dr McKinley's article, in which he says this:
"Definitive answers about health hazards related to the use of radiotelephones are unlikely to come about in the short‑term." 
To similar effect is an article by a Mr Repacholi, from the World Health Organisation, talking about future research; he says this:
          "Effects of exposure to low‑level RF fields are not established or even well understood, so that definitive statements about health risks cannot be made.  It seems likely that any possible effect on health is subtle. However, because it is not possible to prove the negative in hazard‑valuation studies, no definitive affirmation of safety can be made.  Therefore, a coordinated and focused research program in key areas is necessary." 
So says Mr Croxford, there is a legitimate doubt about the matter and it would therefore be legitimate for the authority to take the view that no decision should be made, until that legitimate doubt is dispelled. 
     Those statements have to be seen in the context of the NRPB's advice overall.  Unless the whole of the telecommunications systems of the country is to grind to a halt, some view has to be taken on matters such as this and, as I say, a consistent policy approach has to be taken.
     If this decision were to be quashed and the matter were to go back to the local authority, the question would then have to arise whether they should grant or refuse permission, and if they were minded to refuse it, whether they would be willing to make an enforcement notice to discontinue the use.  In making that decision they would have to take into account the advice of the NRPB, as I have summarised it.  In view of the way it is put by Dr McKinlay, I find it impossible to see how a reasonable authority could take the view that this consideration would justify a refusal, or if they refused it that they be able to uphold it on an appeal.  I say that also bearing in mind the positive case for the proposal, which the authority clearly accepted, in order to fill a gap in the existing network in line with approved policies.  I can see no realistic possibility that, if I were to quash this decision, it would result in any different decision.  Therefore, the application must fail.
     By way of conclusion, and to allay any concerns that
Mr Al Fayed may have, I should refer to the unchallenged evidence on behalf of Mercury as to the extent of the likely impact on him. 
     Dr Ramsdale, who is employed by Mercury as Head of Technical Strategy, explains that the power density predicted from this antennae to the nearest house is approximate 20,000 times lower than the NRPB's investigational level, and that the level at Mr Al Fayed's own house is nearly 3 million times lower than the NRPB's investigation level.  He also points out that there are many different sources of everyday exposure to radio frequency radiation with which we all have to contend.  He says this:
"To illustrate this point, the power output of the Crystal Palace television station is over one thousand times greater than that of the replacement MPC base station.  This means that... if one lived virtually anywhere within 20 kilometres of the Crystal Palace TV station one would receive a higher exposure from that station than that predicted at Mr Al Fayed's house from MPC's replacement base station." 
For these reasons, I dismiss his application.
 
MR KING: Would your Lordship make an order that the application be dismissed and that the Applicant pay the costs of the Respondent.
 
MR PANNICK: My Lord, I too, on behalf of Mercury have an application for costs.  I can develop it if it is opposed. Would your Lordship like me to develop why it is appropriate?
 
MR JUSTICE CARNWATH: Yes.  One has to bear in mind the guidance given by the House of Lords in‑‑‑‑
 
MR PANNICK: Another Bolton case, does your Lordship have a copy of it?
 
MR JUSTICE CARNWATH: I have seen it.
 
MR PANNICK: Can I summarise it.  The position is this: we say that here there are issues of principle relating to the proper approach to the grant of planning permission.  Your Lordship was referred to the need for a national approach in relation to the matter.  Secondly, applying the criteria stated by Lord Lloyd, there was a need for us to remain separate from the Local Planning Authority and, thirdly, we  had a sufficiently separate interest on the facts requiring protection.  We invite your Lordship to apply those criteria but also to note by reference to the evidence in this case, first of all that the Applicants supplied a very substantial amount of scientific evidence, to most of which your Lordship has not, in fact, taken during the course of the proceedings which it was necessary for us to answer so that your Lordship can see the proposition.
 
     Secondly, the important evidence from Dr McKinlay and, indeed, from Professor Ramsdale as supplied by us and, thirdly, the letter from the HSE on 19th June 1998 was also supplied by us.
 
     In my submission, it was right and proper that Mercury should be separately represented, and it would be unjust that Mercury should have to pay its own costs of defending this planning permission.  Mr Al Fayed chose to bring these proceedings, the importance that they have for Mercury, and he has failed and should pay the costs in my submission.
 
MR CROXFORD: My Lord, our first position with respect is that your Lordship having found the flaw, but found in the Respondent's favour on the exercise of discretion, your Lordship should make no order for costs.  If your Lordship is not minded to do that, then there should be one order and one order only.
 
     My Lord, the position is this as we respectfully submit: there is in fact no obvious discrete, identifiable interest or issue addressed that arises in respect or has been addressed by Mr Pannick for Mercury. The position has been that, insofar as evidence has been made available and has been put in by Mercury, it could have been made available to the local authority.  The local authority's position has been that it has effectively put forward the national or consistent position by referring you, as we have referred you also, to the NRPB guidance which, after all, is the same material my learned friend Mr Pannick relies upon as showing what the national position was.  Indeed, in some large measure, whilst it did not ‑‑ I do not criticise him for this ‑‑ whilst it did not stop him rehearsing, embellishing and reordering some of the submissions which my learned friend Mr King had made yesterday afternoon, in large part, Mr Pannick actually adopted the submissions of the local authority, saying he was going to add little or nothing and, with respect, he did add little or nothing other than reordering and so forth.  My Lord, we would respectfully say this is a straight forward case in which the ordinary approach illustrated in the Bolton case ‑‑ which is of course a planning appeal case, but the ordinary approach of Ord 53 applications, that a single order for costs should go, Lord Lloyd's exception in paragraph 2 as to showing "a separate issue", we would say it does not arise  here.  The issues which have been identified and debated over the last day and a half were the same as between the local authority and the developer, Mercury, and insofar as the success has been on the discretion, each of them sought to advance substantially similar arguments.
 
     My Lord, in those circumstances, we would invite you to say, therefore, no order for costs and in the alternative only one.
 
MR JUSTICE CARNWATH: Can I just put two points: first the point that Mr Pannick makes that from Mercury's point of view, as opposed to Tandridge, this is a national consideration because, obviously, a refusal in these sorts of grounds of any telecommunication centre would have fairly dire national implications for Mercury and, therefore, that is something which perhaps takes it more into the Bolton category.
 
MR CROXFORD: My Lord, firstly, it would not have any effect nationally whatsoever on the outcome of this application, because if your Lordship had quashed, you would have quashed not on the merits, but on the defect in process.  It is only because you have got the extract of discretion that you had to address merits at all, where the national interest, as my friend would put it, arises.  The discussion of the national interest, if you had quashed, would have been a matter which arose then before the local authority, so that is the first response.
 
     My Lord, the second response is this: if your Lordship would be good enough to remind yourself of my learned friend, Mr King's, outline submissions, it is page 5.  I am not going to read them to you, but those submissions were looking effectively at the national position insofar as they are looking at discretion and they are looking at the position disclosed by Dr McKinlay and Professor Ramsdale which are rehearsing ‑‑ both of them are rehearsing the NRPB position which is the national position.  My learned friend, Mr King, was taking that point as, indeed, with the greatest of respect to my Lord, on your judgment, he was bound to take, because your Lordship in giving judgment, if I understand rightly, has found that an authority such as Tandridge is, in effect, bound to follow such advice as is given by the NRPB which is, by definition, national in character in circumstances such as this, because there is no, on the face of it, conclusive evidence, scientific evidence otherwise.  My Lord, the position was bound to be that the national concern, if that is what it was with Mercury was going be addressed and was addressed by Tandridge.
 
MR JUSTICE CARNWATH: The other point I was going to put to you is this: it might be said that until the HSE and the  NRPB's position was, in fact, made clear by the correspondence, that you had legitimate grounds for pursuing the matter, that once that had been done as it was at the end of 1997, clearly you should have that point, except that you had all you could legitimately seek, in which case the basis would be to make no order for costs up to the end of 1997 and award costs thereafter.
 
MR CROXFORD: My Lord, I am not going to look a gift horse in the mouth as the third alternative and say it is a third alternative, if you are against me on the primary submission of saying, no order for costs, then I would encourage you to make that order. The position at its highest did not come about until June 1998 when this explanation came through in the HSE letter which, on one view, is certainly addressed only to the position in respect of June.
 
MR JUSTICE CARNWATH: I suppose Dr McKinlay's evidence was probably the fullest statement and that was March.
 
MR CROXFORD: No, my Lord.  Dr McKinlay's evidence rehearses what is already in the public domain, and the issue here would have been what advice would the local authority have received from the HSE?  Your Lordship will see that the sentence concluding, 'the association is weak' etc and not persuasive, but that would have meant, my Lord, if he then accepted that ‑‑ and I recognise that it may be implicit in your Lordships' judgment ‑‑ we could never have argued that the members of the local authority could have formed a different view, and that is really a very important and significant point, because your Lordship has in your judgment, if I understand it rightly, adopted an approach in respect of discretion, that the court will look at the likely outcome and, with the greatest of respect to my Lord, will do so in an inherently logic fashion.  By a logical route, you will assess the likely outcome of a planning application where what is being considered is not logical, not necessarily in whole but in part, because there will be substantial fears which may not be well based in scientific fact. My Lord, the approach of the court with respect is difficult in those circumstances to come to something logically and to assess the weight or something which is inherently illogical and yet (I shall presently have an application to make) it is something which, of course, the planning authority is quite entitled to do (see West Midlands and see Newport) where the Court of Appeal has found that acceptance of the illogical‑‑‑‑
 
MR JUSTICE CARNWATH: I am not sure what you are now doing, are you rearguing the case or dealing with my particular point?
 
MR CROXFORD: I am trying to address your particular point, because, my Lord, your point put me‑‑‑‑
  
MR JUSTICE CARNWATH: You are not attracted by it?

MR CROXFORD: Not at all. I am attracted by it as an alternative to paying two sets of costs, obviously, but your Lordship's point says to me, once you have this letter of June 1998 or Dr McKinlay's evidence saying what their view is, you then ought to stop, because the likely outcome of the exercise of discretion by the judge is that the outcome of the planning application would not have been different.
 
MR JUSTICE CARNWATH: Thank you. Mr King, I do not think I need hear from you.
 
MR KING: Thank you.
 
MR JUSTICE CARNWATH: Mr Pannick, I think I do need to ‑‑ looking again at Bolton, I am not sure how you can bring yourself within the exceptions that are set out there.
 
MR PANNICK: Can I direct your Lordship's attention to 1178H:
 
"The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard or alternatives unless he has an interest which requires separate representation."
 
That is how I put it.
 
MR JUSTICE CARNWATH: The next sentence is rather crucial.
 
MR PANNICK:
          "the mere fact that he is the developer does not of itself justify a second set of costs."
 
Certainly, my Lord, we say we had an interest which requires separate representation and one sees at 1179 at letters B to D what Lord Lloyd regarded as the sort of factors that justified at first whether they were difficult questions of principle.  Secondly the need, or possible need for redetermination.  Then there is the scale of development and the importance of the outcome for the development.  On your Lordship's findings this is self‑evident as a matter of the most considerable importance for Mercury.  It is wholly unrealistic for my friend to submit that this is a matter of purely local concern.  It is a matter of general concern. In all those circumstances, given that we had separate interests to protect, this is by no means a standard planning case concerned only with local interests. In my submission, it would be unjust, where the applicant having brought these proceedings, not to have to pay our costs, especially when a very substantial part of the material did  relate to scientific material which we were in the best position to respond to and which, in fact, we were the persons responding to it.
 
MR JUSTICE CARNWATH: Yes.  The McKinlay evidence, that was part of your evidence.
 
MR PANNICK: Yes, McKinlay and Ramsdale.  That is the evidence which responds to the material, and there is a mass of it in volumes 2 and 3 which the Applicant filed.  We are the ones who have had the burden of producing the scientific answers to what the Applicant has been contending, it is we who have succeeded substantially in relation to the discretion issue insofar as the Applicant has succeeded, he has succeeded by reference to the deficiencies of the council for which we are in no way, of course, responsible. It is our case that has succeeded before your Lordship by reference to the scientific realities of this case.  In those circumstances, I do submit that it would be wrong for Mercury not to have its cost of this application. That is my submission.
 
MR JUSTICE CARNWATH: It seems to me that the district council should have their costs in whole, although I found there was a flaw, I think I also found it was a flaw which could not reasonably have effected the decision and in accordance with the principles established by the Bolton case in the House of lords (1995) 1 WLR 376, the authority were fully entitled to present their position.
 
     The position of Mercury is slightly more difficult. Undoubtedly they had a separate interest to defend because it is their development which is under attack, but the House of Lords made it clear that that by itself was not a sufficient reason for issuing two sets of costs. The House did grant more that one set of costs in that case, but they took into account the national policy considerations which required the Secretary of State to stand aloof from the parties, as they put it, and the fact that the funding for the opposition came from eight authorities supported by a consortium who have major and commercial interests.
 
     This case, as I understand it, is brought by an individual who is concerned by his residential environment, and in general, the position of the council and the developers was very much the same. There is, however, the special factor that the decision in this case would have implications for Mercury nationally, and also that the objection did raise technical issues on which the evidence adduced on behalf of Mercury and particularly that of
Dr McKinlay and Professor Ramsdale has been of some importance.
 
     In those circumstances, I think it is fair to award  half their costs to Mercury, so there will be one set of costs for the authority and half the costs for Mercury.
 
MR CROXFORD: My Lord, I have two other applications.  First can I ask your Lordship to grant leave to appeal?  I have indicated already in costs ‑‑ as I understand your Lordship's approach correctly, it is that you have applied a threshold test on discretion, there being, in effect, no reasonable possibility of an application for planning permission having failed.  We would respectfully suggest that it is very difficult to see how such an approach can be applied in the logical way of your Lordship's court properly to this essentially difficult and illogical area which has been recognised in the West Midlands case and others, and that, we respectfully suggest, is something that their Lordships should look at.
 
     My Lord that is the first application.  Would it be convenient if I mention the other?  It is only asking for an order for expedition of the transcript.
 
MR JUSTICE CARNWATH: Why do you want that?
 
MR CROXFORD: My Lord, in order that we can get on with the business of properly preparing ipsissima verba the appeal.
 
MR JUSTICE CARNWATH: I am sure the shorthand writer will get you a transcript as soon as she can, but this is not one of those cases which I regard as requiring special expedition, unlike some of the cases we deal with. I am afraid I refuse you leave to appeal as it turns very much on its own facts. Thank you very much.