Case Nos: CO/7557/2012, CO/380/2013
Neutral Citation Number: [2013] EWHC 1850 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
CARDIFF ADMINISTRATIVE COURT
Sitting at:
Bristol Civil Justice Centre 
2 Redcliff Street 
Bristol
BS1 6GR 

Wednesday, 17 April 2013
 
Before: 

MR JUSTICE KENNETH PARKER
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Between: 

WEBB
Claimant

--and-- 

HEREFORDSHIRE DISTRICT COUNCIL
Defendant 
 
BOLSTERSTONE INNOVATIVE ENERGY (REEVES HILL) LTD 
Interested Party

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A Merrill Communications Company 
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Tel No: 020 7404 1400 Fax No: 0207 404 1424 
(Official Shorthand Writers to the Court) 
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Mr Harwood QC (instructed by Richard Buxton Environmental and Public Law) appeared on behalf of the Claimant
 
Mr Kimblin QC (instructed by Herefordshire DC) appeared on behalf of the Defendant
 
Mr Tucker QC (instructed by Blacks) appeared on behalf of the Interested Party 
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J U D G M E N T 
Mr Justice Kenneth Parker:  

1.	This is an application for permission to apply for judicial review brought by the claimant, Paul Kevin Webb.  It appears that Mr Webb is a member of a residents association group, namely the Stonewall Hill Conservation Group (SHCG).

2.	The decision under challenge is the decision of the Herefordshire Council (the defendant) to grant planning permission for the erection and operation of four wind turbines and associated access tracks, hardstanding and substation building at Reeves Hill, Reeves Lane, near Knighton, Herefordshire.

3.	The interested party, as the developer, is Bolsterstone Innovative Energy (Reeves Hill) Ltd.  Permission was refused by HHJ Bidder QC, sitting as a Deputy High Court Judge, who gave specific reasons for that refusal. 

4.	The chronology may be summarised as follows.  On 19 May 2008 an application was made by the interested party to the Council.  In October 2008 there was a supplementary environmental report.  On 12 February 2009 the Council resolved to grant permission.  In October 2010 there was a further supplementary environmental information produced.  On 14 September 2011 the second resolution to grant planning permission was made, and then, on 25 April 2012, there was the grant of planning permission.

5.	The claimant delivered the pre‑action protocol letter and draft grounds on 6 July 2012, and then sometime thereafter, on 18 July 2012, a claim form was issued.  On 19 July there was a response to the protocol letter, and then, on 23 July 2012, a claim form and fully particularised grounds were served.

6.	This is a renewed application for permission, and I intend to give my reasons fairly briefly.

7.	Mr Richard Harwood QC on behalf of the claimant relies upon five grounds.  In relation to the latter two grounds, he seeks permission furthermore to amend the claim so that they can be properly considered at a substantive hearing.  I turn to look at the grounds in turn.

8.	The first ground relies upon section 85(1) of the Countryside and Rights of Way Act 2000, which imposes a duty on the planning authority, in this case the Council, to have regard to conserving and enhancing the AONB.  In Mr Harwood's submission, those words mean that the Council has to have regard to avoiding any harm, and he submits that in this case the Council applied a weaker test, namely the Council asked itself: is there any significant adverse effect?

9.	To support that submission, Mr Harwood relies, for example, upon a Committee Report which can be found at page 366 of the bundle, in particular upon paragraph 6.14 and paragraphs 6.38 and 6.40, which provide:

"6.14.  Policy CF4 clearly indicates that development proposals for the production of renewable energy will be permitted provided that they do not adversely affect the integrity of sites of international importance for nature conservation and that the objectives of the designation of nationally important sites and other areas of special interest, e.g. AONBs, scheduled ancient monuments and archaeological remains, will not be compromised and that any significant adverse effects on the qualities of the area are clearly outweighed by the environmental social and economic benefits.  Policy further states that outside of nationally designated sites and areas, proposals should not have a significant detrimental effect upon the character of the particular landscape qualities of the location or significant impact upon the amenity of neighbouring residents, through such issues as noise, odour or electro‑magnetic interference, and that in assessing proposals for renewable energy regard is given to the wider environmental, social and economic benefits. 

... 

6.38.  As previously indicated in this report, national, regional and local planning policy clearly emphasises that proposals of this nature subject must be assessed for their contribution to reduction of greenhouse gases, (C02 emissions), as well as their impact on the surrounding landscape and in particular if there is a significant impact on designated areas, e.g. National Parks and AONBs.

... 

6.40.  There is no doubt that the proposed development of four wind turbines and its associated infrastructure will have an effect on the landscape character of the area during the site’s life span. Therefore this has to be judged against relevant planning policy to consider whether the harmful effects, outweigh planning policy sufficiently to warrant refusal to the application on the issue of landscape impact. This matter is addressed in the conclusions to this report." 

10.	However, in my view, it is necessary to stand back and consider the procedure as a whole in this case.  The environmental statement of May 2008 specifically addressed landscape and visual impact.  That aspect was then fully developed in the supplemental environmental report of October 2008, and then again in a further supplementary report of October 2010.  Furthermore, the Committee reports from 2009 and September 2011 address the AONB in detail.

11.	So far as the officer's appraisal was concerned, landscape and visual impact was one of the principal issues addressed in the 2009 report, in which a full appraisal of the matter was made with express reference to the AONB.

12.	In my view, when the procedure is properly considered as a whole, and in my view it is imperative that in cases of this kind that that is done, it is not arguable that the Council was not having regard to the statutory purpose put forward by Mr Harwood, namely the avoidance of any harm.

13.	In accordance with policy CF4 Renewable energy, it is correct that the Council then had to weigh any relevant significant adverse effects against environmental, social and economic benefits.  The references to significant adverse effects have to be read in that particular context and they do not arguably throw any doubt on the conclusion that, firstly, the Council was fully aware of its duty under section 85 of the relevant legislation and, secondly, complied with it.  It is notable that there is no challenge at all to the balancing conclusion that the Council then reached, having fulfilled its duty under section 85 and gone on to consider the relevant planning policy.

14.	The second issue raised by Mr Harwood is in the following terms: that councillors were wrongly advised by the planning officer at the 2009 Committee meeting that national policy advised that planning permission for renewable energy could only be refused on landscape grounds "in the most exceptional circumstances".  That advice was wrong, and there is no issue between the parties that such advice, if given, would have been incorrect.  No exceptional circumstances had to be shown to refuse permission.  Mr Harwood conceded that the error was not repeated in the later 2011 report, to which reference has been made in the chronology.  At that point the Committee were simply being asked to consider whether to depart from their previous resolution.  They were not being asked to consider matters afresh.

15.	The evidence relied upon in relation to this ground is SCHG’s transcript of Hereford Council's Special Planning Committee meeting of 12 February 2009 at the Shire Hall, Hereford, and this transcript is said, in the document at page 411A of the trial bundle, to be based on detailed notes taken by seven people present at the meeting.  My first observation in relation to this is self-evident, namely that these minutes, which is what they really are and not a transcript, are based on composite notes and there is simply no explanation in the evidence as to who precisely compiled them, what period at the meeting was spent by the individuals in question, how any discrepancies between the notes kept might have been dealt with and how the final document was composed.

16.	Secondly, these minutes, as far as I am aware, were not presented to the Council for approval at the time or indeed within a reasonable period of their compilation.  Because they are alleged to have contained what is a stark error of law, that is, in my view, somewhat surprising.  It is not surprising, however, that the Council, by virtue of the distance in time from the meeting and the production of this document, is not able to assist the court as to what precisely may or may not have occurred at this meeting.

17.	Thirdly, it is plain on the face of the minutes that the officer is addressing a question and he is referring specifically to something said by the Council's consultants.  I was taken by Mr Tucker QC on behalf of the interested party to the relevant report of those consultants, and that report does not actually bear out what is being attributed to them in the minutes of this meeting of 12 February 2009 as presented by the claimant.  That must also throw considerable doubt on the accuracy and completeness of these minutes.

18.	In my view it is simply unacceptable to seek to present evidence of this kind in this way in order to formulate what would be a very serious allegation of illegal conduct by an officer of the Council on which the Council is then said to have relied.

19.	In any event, in my view there is simply not sufficient evidence that the Council was acting under any misapprehension as to the true legal position in 2011.  That, of course, was about two years later.  The ground relies upon an assumption that in 2011 the Council had in mind what was allegedly said some considerable time before and then acted upon that assumption.  In my view, that is simply a fanciful speculation and it cannot be put forward as a solid ground for judicial review, especially in the light of the nature of the evidence to which I have already referred.

20.	The third issue raised by Mr Harwood is an allegation that the Council failed to consider the requirements of the Habitats Directive with respect to European protective species, contrary to regulation 9(5) of the Conservation of Habitats and Species Regulation 2010.  Mr Harwood submits that the Council were required to have regard to the Habitats Directive's requirements with respect to great crested newts, as a derogation by a species licence was required.  In that context, Mr Harwood for completion referred to paragraph 6.6.5.2 in particular, page 186 of the bundle, where it is said that: 

"As a consequence of this widespread distribution of great crested newts across the site a great crested newt development licence will have to be obtained from Natural England in Bristol.  Licence application will require substantiation by further survey work at the appropriate time of year.  This licence requires population class size to be determined based on the number of adult newts during optimum survey conditions."

21.	For completeness, reference should also be made to paragraph 6.6.5.6, where the following is stated: 

"The impact sensitivity of great crested newts registers as high due to its European Annex 1 status.  Provided hydrological issues are addressed and construction does not affect adult terrestrial newts, pools or hibernaculae, the likely magnitude of impact should be negligible or neutral if suitable mitigations are put in place.  This would give a neutral probability of impact on great crested newts.  Mitigation methodology is to be formulated in method statement devised for the Defra licence application prior to construction." 

22.	Given the applicable case law in relation to this issue, which can be found in R(Morge) v Hampshire County Council [2011] Env LR 19 at paragraph 30 by Lord Brown, it is notable that Natural England considered the environmental information supplied with the environmental statement, and Natural England had no objections to the application in this regard.  In its letter responding to the consultation Natural England dealt with biodiversity at paragraph 7 and recorded that: 

"The methodology used for the assessment of potential ecological impacts appears to be thorough and appropriate and therefore meets with our approval.”

23.	It went on specifically to refer to Great Crested Newts, and said this: 

"Natural England concurs with the conclusion of the ES ecological assessment that mitigation methodology should be formulated in a method statement devised for the Defra licence application." 

24.	The Council commissioned independent consultants to review the environmental statement and they concluded that the statement was appropriately undertaken in this particular respect.  Therefore it is obvious that the environmental statement assessed the relevant impact as neutral.  The great crested newt would not be affected if appropriate mitigation was put in place.  So, if the development was constructed with that appropriate mitigation, there would be no activity that could cause concern.

25.	In my judgment, that complied with the Article 12(1) duty imposed by the Directive.  Insofar as any licence might be required, the Council had no reason, in the circumstances that I have outlined, to believe that any appropriate licence would not be independently forthcoming and they had no good reason, in those circumstances, to consider specifically whether the condition relating to derogation under Article 16 would be satisfied.

26.	So, for those reasons, I reject the third ground also.

27.	The fourth and fifth grounds, as I have already explained, are sought to be introduced by way of amendment, but I will deal with the substance of them rather than specifically directing myself to whether the amendment should be allowed.
28.	The first ground relates to micro‑siting and it arises in this way: that in the reasons for the relevant permission under challenge, the following is stated under the heading "Hydrology and Hydrogeology": 

“The Environmental Statement and additional information received acknowledges that water features on site provide water to livestock on the land as well as to surrounding dwellings on the application site.  Whilst the additional information in support of the application reclassified the aquifer classification from a non aquifer to a secondary (A) aquifer, in the context of the ground water resource potential the Supplementary information as having a ‘high importance’ compared to a previously ‘low importance’, the degree of risk to the wider ground water system remains relatively minor, given the scale of the proposed development.  Within the surrounding area are isolated dwellings that have private water supplies, which are fed from the surrounding land including the application site.  Whilst it is acknowledged that any likely impacts on water features is minimal, the mitigation as put forward by the applicants is considered acceptable as no precise impacts on water supplies can be established prior to development on site.  However the application indicates micrositing for the proposed turbines and with adequate conditions attached to any decision notice to ensure adequate on site monitoring and mitigation it is  considered that water features will be adequately protected as advised by the Environment Agency and the Council’s Environmental Health manager in response to the application. 

The Environmental Statement and addition information received indicate there will be little impact on surface water drainage.  The Council concur with the findings of the information and consider that any issues of concern can be adequately addressed by means of appropriate conditions to any decision notice issued with regard to surface water drainage and on site pollution such as oil spills etc.”

29.	In my judgment, what is being put forward here relates to an alleged defect in the reasoning supporting the grant of permission.  In short, it is being alleged that the application indisputably refers to micro‑siting, and that is what the cited passage itself is referring to.  However, and this is common ground, permission does not include micro‑siting.  However, in my judgment, insofar as there may be an error in that reference in the cited passage, that error is not material again when the reasoning as a whole is considered.

30.	In my view, the essential reasoning supporting the grant in this respect is that there would be a minimum relevant impact, and that could be appropriately and properly addressed by the mitigation measures that were put forward by the interested parties, buttressed by adequate conditions that are referred to.

31.	To interpret the permission as dependent on micro‑siting, which is really the thrust of this proposed ground, is, in my judgment, not a fair and reasonable interpretation of the reasons put forward when considered as a whole.  So I also reject that ground.

32.	The last issue relates to an alleged inconsistency in the plans which form part of this challenged permission, and Mr Harwood puts the proposed ground in the following way: he says that the original application plans showed the access to turbine 3 coming from the road to the west of the site.  The small scale September 2011 site plan shows access being taken for the turbine from the north; also changing the track, parking area and turning area.  The other plans were not changed including the more detailed site access 2 plan.  Therefore he submits that the Council has granted planning permission on plans showing wholly inconsistent development.

33.	In my judgment, there are three short answers to this.  It is plain, again looking at the documentation as a whole, that the site plan of 9 September 2001 is an amendment of the plan set out at page 64 of the trial bundle to which Mr Harwood referred.  That amended plan quite plainly shows northern access.

34.	Secondly, the permission, which is set out at page 539 of the trial bundle, clearly refers to the plan of September 2011 and to no other plan.

35.	Thirdly, the documentation, which is not in dispute, shows both the officers and the Council were well aware of the particular amendment and they were also very well aware of the good reasons for it.  Therefore, in my judgment, there is simply no inconsistency and no inconsistency that could be arguably presented as a ground.

36.	For these reasons, I refuse permission in relation to the substance.  The reasons that I have given are little more than an elaboration of the reasons which I believe were correctly given by the Deputy High Court Judge when he refused permission on the papers.

37.	I do not, in those circumstances, have to deal with the question of delay.  All I would say is that I would in any event have had very considerable trouble in allowing the amendment of the claim to rely further on the matters of micro-siting and the question of inconsistency in the plans.  From what I have seen, there has been no reasonable explanation of why those matters could not have been raised in the original claim or well before the time that they were presented to the defendant and the interested party.
38.	It is well-known and is imperative in this area of the law that the claimant must act promptly, and that relates also to any attempt to amend a claim that may have been made promptly in the first instance to allege further substantive grounds for challenge.  But, as I say, in any event that does not arise because I have not allowed permission in respect of any of the grounds as a matter of substance.

MR KIMBLIN:  My Lord, in respect of that aspect of the hearing, may I deal with the question of costs.  I only seek the costs of the Acknowledgment of Service as were ordered by the learned Deputy High Court Judge, namely £3,500.

MR JUSTICE KENNETH PARKER:  Yes.

MR KIMBLIN:  I do not seek anything in respect of attendance today, but I do seek an additional sum, being £500, for the time spent in dealing with what was essentially an extension to the grounds and so an extension to my Acknowledgment of Service.

MR JUSTICE KENNETH PARKER:  Right.  So that will be a total –

MR KIMBLIN:  It will be a total of £4,000.

MR JUSTICE KENNETH PARKER:  I think there may be another ‑‑ 

MR TUCKER:  My Lord, there is, I do apologise.  My Lord, as I intimated at the very outset, the only application for costs that I would make in these proceedings is for the costs of the Acknowledgment of Service on the part of the interested party.  My Lord, there was a schedule that was served with the response.  The figure is £2,880.  Unless I can assist the court further?

MR JUSTICE KENNETH PARKER:  Right.

MR HARWOOD:  My Lord, a couple of points that arise on this.  First of all, in terms of the Council’s Acknowledgment of Service, in principle of course they are entitled to the costs of the Acknowledgment of Service including the summary grounds.  What they are not entitled to are costs which relate to responding to the pre‑action protocol, that is costs which precede the commencement of proceedings.  As I understand their figures, (inaudible) on their schedule, they have actually wrapped up two elements together.

MR JUSTICE KENNETH PARKER:  It looks like they haven’t severed the marginal costs of the AOS and summary grounds.

MR HARWOOD:  It is simply that Acknowledgment of Service and summary grounds.

MR JUSTICE KENNETH PARKER:  Yes.

MR HARWOOD:  In terms of the interested party, several points arise.  The first is an overall point and relates back to the application for a protective costs order, which is that proceedings should not be prohibitively expensive.  My Lord knows what the approach is to Aarhus Convention claims under the new rules, which would impose an overall limit of £5,000 at that stage ‑‑ the High Court stage of the proceedings.  So any costs order overall has to be within an Aarhus compliant approach.
Secondly, in terms of the recovery of the Acknowledgment of Service costs by an interested party, my Lord will be familiar with the general approach in judicial review that normally there is only one set of costs awarded.  The Court of Appeal in Mount Cook, in the authority that is very familiar, my Lord will recall that the Court of Appeal in Mount Cook does refer to Acknowledgment of Service costs of the defendant and other parties, but that is entirely obiter.  The position in that case was a dispute between the defendant Council and the claimant about costs at permission stages, so there was not an interested party actually in front of the court at that stage, and the usual principle from the House of Lords in Bolton, a planning case, that applies to judicial review generally there is no two sets of costs unless essentially the second party has a good reason for attending and adds to the proceedings.  In the nicest possible way, it is a pleasure having Mr Tucker here, the interested party has not added materially to the proceedings (inaudible) were the submissions which were made on behalf of the Council.  That was the position in the Acknowledgment of Service.  So it is not a case that merits a second set of costs in any event.  Of course, were the two brought together, that would then go straight into the Aarhus territory.  So, my Lord, what would be an appropriate order would be Acknowledgment of Service costs, and we think £3,500 does include some preparation within that.  Were the court to want to put in an element for, in a sense, the acknowledgment or response to the amended grounds, then, my Lord, I could not resist that, because if they had been done at the time, they would have had to have dealt with it in their Acknowledgment of Service.

MR JUSTICE KENNETH PARKER:  Yes.  Well, we are not talking about large amounts.  Of course, I could send it for detailed assessment, but that would ‑‑ is there a point of principle there that there may have been double counting or bundling problem?

MR KIMBLIN:  There may be.  Two points really.  Firstly, one does in fact carry forward the work done on the pre‑action protocol letter into the grounds, so if one distinguishes a case where there is no protocol letter, the claimant gets stuck with those costs because they come in later.  So the overlap there is not something that is easy to distinguish.  The other point is that shortly we are going to turn to the mention of the linked case, and so far as that is concerned, the claimant is seeking costs of drafting grounds of the pre‑action protocol letter, so we have already had a consistency point in this case.  I am content for it to go either way.

MR JUSTICE KENNETH PARKER:  You would resist that, I assume?

MR KIMBLIN:  It is my ambition not to get to that point, but so far as the claimants taking that point, it is not one they adopted in the other matter. 

MR JUSTICE KENNETH PARKER:  No.  What I was proposing was, to give some credit to the point made about the bundling, was to reduce ‑‑ you were claiming £3,500, were you?

MR KIMBLIN:  That is right.

MR JUSTICE KENNETH PARKER:  Yes.  I was proposing to reduce that to £2,000 and then add the £500, so to reduce it to £2,500 unless you are strongly resistant.

MR KIMBLIN:  I have been supplied by my instructing solicitor with a copy of my fee notes.  On 12 August there is a fee note for £2,200 plus £440 VAT in respect of the grounds, reading the grounds and drafting summary grounds of resistance.  So to acknowledge Mr Harwood's point, I would settle for £2,600 if that was of any further assistance to him.  There was, as he points out, some £1,300 spent during the course of July on protocol correspondence.

MR JUSTICE KENNETH PARKER:  I think I would reduce it to £2,500 plus the £500 so that would be a total of £3,000.

MR HARWOOD:  As I understood my learned friend's point was that it was £2,200 post proceedings.

MR KIMBLIN:  That is right.

MR HARWOOD:  So (inaudible) simply seeking my learned friend's costs of £1,300 pre‑proceedings, which is what gets to £2,500.  So I think my learned friend was suggesting a figure of £2,200 plus £400 for grounds, is that right? 

MR KIMBLIN:  Mr Harwood, the sum there is £2,200 plus £400 VAT, so £2,200 plus the £500.

MR HARWOOD:  So my learned friend is seeking £2,700.

MR JUSTICE KENNETH PARKER:  You are seeking £2,700 total?

MR KIMBLIN:  That is right.

MR JUSTICE KENNETH PARKER:  Right.  You are content with that?

MR HARWOOD:  My Lord, I am not going to spend time resisting that.

MR JUSTICE KENNETH PARKER:  Mr Tucker, do you have any response from your position? 

MR TUCKER:  My Lord, simply that it is quite right that the Mount Cook observations are obiter, but the practice of this court, as your Lordship will be aware, is that an interested party is now obliged to provide more than simply Acknowledgment of Service, but also summary grounds of response within the rules, and the theory behind the Mount Cook judgment is that the interested party will be expected to say something in response.  We did.  My clients, facing a challenge which has now been held to be unarguable, have been put to considerable expense.  In relation to that, I am not seeking to argue, paradoxically I am not seeking to argue I have added anything sufficiently to today to justify an application for costs.  My client's instructions are very firm, that they wish simply to apply for the Acknowledgment of Service costs and those are genuinely post pre‑action protocol matters.

MR JUSTICE KENNETH PARKER:  Yes.  I understand your position, but I have to bear in mind the general principle about one set of costs, and I have to look at it objectively in terms of what further contribution was made by your participation.  It is no reflection on you or those advising you at all.  I understand your interest in becoming involved and doing so in a substantive way, but I still think that the fair result is no order for costs unfortunately. 

MR TUCKER:  As your Lordship pleases.

MR JUSTICE KENNETH PARKER:  Right, that leaves the costs of the ‑‑ 

MR KIMBLIN:  The costs of the second proceedings, yes. 

MR TUCKER:  My Lord, I wonder if your Lordship would forgive my departing hence.  Obviously the costs of the second proceedings are not an application made against my client.  If your Lordship would forgive me.

MR JUSTICE KENNETH PARKER:  Yes.  Now, there are separate bundles dealing with it.

MR HARWOOD:  There is a separate claim bundle and there is a separate clip.  I hope my Lord also has ‑‑ which has gone into the additional clip has but hopefully reached the court separately as well, a costs application of the second proceedings from myself, and in addition there is a schedule of costs from us in respect of the second proceedings.  My Lord, the underlying correspondence starts with the second claim bundle, then continues in the additional clip of documents in respect of the 2013 proceedings.  It starts at page 700.  My Lord, can I pass a clean copy up.  Can I pass the additional clip in relation to the second bundle as well.  Has my Lord had an opportunity to look at my costs submissions on this?

MR JUSTICE KENNETH PARKER:  Yes, I have

MR HARWOOD:  My Lord, the position is, I hope, reasonably straightforward.  I can perhaps take the court through it by reference to the chronology at the back of my submissions.  I will dip into the documents to the extent we need to on that.  As my Lord will appreciate, the original planning permission was granted in April 2012.  A section 73 application was made.  My Lord may know that is an application for to grant a new planning permission, same description of development but different conditions.  The purpose of that in this case was to alter the access plans so that access can be changed to meet those requirements.  We then on 14 November ‑‑ permission was issued on 22 October and, my Lord, that permission itself is at page 847 of the second claim bundle.  We then wrote a pre‑action protocol letter at page 900, which is 14 November, so about three weeks or so later, raising in paragraph 10 five particular grounds, one of which, we don’t need to go into detail on these, but one of which, ground 2, related to the need to consider environmental impact assessment.  We then received a reply from the Council at page 906 on 14 December where they said they intended to revoke the permission.  
Now, my Lord, what normally happens, in my experience, when a planning authority accepts that the planning permission granted is unlawful, the authority would normally agree to submit to judgment.  The parties will then file proceedings normally in a very short form and put the decision in and put the pre‑action correspondence in, and hopefully by that stage ‑‑ 

MR JUSTICE KENNETH PARKER:  But there is no claim actually issued at this stage? 

MR HARWOOD:  The claim had not been issued at that point.  It was simply the pre‑action stage.  So ordinarily what happens as a matter of practice is that the Council will agree because it is functus officio, it cannot really make a decision, the Council will agree to submit to judgment on proceedings being brought and proceedings are then put in and can be in pretty short form, ideally by that stage with a consent order.

MR JUSTICE KENNETH PARKER:  Why should proceedings have to be brought?

MR HARWOOD:  Because the Council itself (inaudible) revocation process, has no power to simply say it is an unlawful decision and tear it up.  The planning permission is a legally effective act.  There is no ability to rewrite.

MR JUSTICE KENNETH PARKER:  But here they are trying to obviate the bringing of proceedings.

MR HARWOOD:  They are trying to obviate my Lord, and that is something which nobody does for (inaudible) this Council having a go at it for two very good reasons.  The first is that the procedure for revocation is a relatively complex one, and even at its speediest is not in practice going to be concluded before a potential claimant has to bring proceedings, because what the authority would have to do is to make a revocation order.  That can only take effect with confirmation by the Secretary of State, unless all of the persons who are effectively the owners occupiers of the land, and any person the authority considers to be affected by the order, has consented to the making of the order.  The authority then advises for a period of not less than 28 days, and if there are no representations against the making of the order in that period, the revocation can take effect 14 days thereafter.
So even with a speedy wind, it takes time and will almost inevitably, certainly in this case, take it well beyond the (inaudible) period.  The other reason nobody does it is because the revocation order gives rise to an obligation to pay compensation to persons interested in the land who have suffered a loss as a result.  So the effect of the revocation order is not to (inaudible) that permission is invalid; it is to treat the permission as valid and taken away from the persons who have the benefit of it, so therefore they are entitled to compensation, which is apparently what has happened on compensation in this case.
So the usual, and in fact the invariable, position is that revocation can be sought to be done as a way of dealing with this issue.  What happened in this sequence, my Lord, is that the Council having said it would revoke, although not saying much more than that, my instructing solicitors wrote to the Council on 17 December saying, look, the sensible way of dealing with this is to submit to judgment on a quashing and it will be very quick.  On 19 December (inaudible) Council reaffirmed its position.  The actual decision to take revocation steps does not appear to have been taken actually at that stage because the decision which the Council rely on for authorising them taking (inaudible) revocation process my Lord finds at page 910 of the bundle, and that is a delegate officer report, issued by, in this case, an assistant director of the Council on 2 January 2013.  That acknowledges in paragraph 5 the environmental impact assessment error.  It suggests there are two options available.  It does not take into account what must have been relevant which is the compensation liability on the Council if it revokes.  But that is the first time that there is a decision as opposed to simply something said in correspondence.  That seemed to be the authorised decision, and then there is, to complete the correspondence, at page 912 there is also acknowledgment in the response to a complaint by another local resident that the error had taken place, and that complaint arose out of the pre‑action protocol correspondence.  Proceedings were then brought on 14 January.  The Council did not make the revocation order until 22 January.  My Lord, we have the revocation order in the index of the additional clip of documents at tab 1.

MR JUSTICE KENNETH PARKER:  Did the Council deal with the compensation point anywhere?

MR HARWOOD:  No, my Lord, we have not seen anything explaining how that issue has been addressed in the decision-making and how the Council proposes to deal with it.  But we have a revocation order dated 22 January, which is three months to the day from the grant of the planning permission.  Now, those instructing me are then informed by the Council of that three days later, on 25 January.  The Council then advertised the making of the order on 21 January on the basis of it being an unopposed appeal.  At that stage they thought that everyone with an interest had signed up to it.  That advertisement then said "representation 28 days", and the order would take effect, the actual revocation would take effect, on 14 March had there not been any objections to it.  The order took effect on 14 March.  My instructing solicitors asked on 21 March whether that had taken effect.  We had not been informed whether there had been any representations.  That position was confirmed a week later and then the –

MR JUSTICE KENNETH PARKER:  Do we have the order granting permission on 11 February?

MR HARWOOD:  Yes.  My Lord, that is tab 3, I am told.  So permission was granted on the basis the claim was likely to succeed and listed for a mention.

MR JUSTICE KENNETH PARKER:  Did the defendant not say that the whole claim would become academic, anyone?  It says "The defendant and the interested party have conceded that this claim is likely to succeed.’"

MR HARWOOD:  That’s how it was put.  It was pretty obvious that it was (inaudible).  It was clearly apparent to the judge at that stage that the second planning permission was likely to go one way or another, and so the likely effect of the issue was going to be costs.  But that does depend, certainly at that stage, on what happened to the revocation order.  The position we are now in is the revocation order has taken effect, and so the sole remaining issue is on costs.  My Lord, if I can turn to that issue and the question of principle.

MR JUSTICE KENNETH PARKER:  You could argue that if they were going to resist costs, what they needed to do actually was put in an AOS saying the thing is academic so as to prevent permission being granted at all.  It is more difficult once permission has been granted on the basis that a claim is going to succeed to resist an order for costs, I would have thought.

MR HARWOOD:  Indeed, my Lord, but in a sense they had the problem in any event that the reason for the revocation was, as my Lord will see in the delegated report, an acceptance of a legal error.

MR JUSTICE KENNETH PARKER:  But that would not matter on this point because quite frequently you have a situation where a party is saying they have applied for permission, but it is entirely academic because we are taking the following steps.  In other words, we are withdrawing some decision or we have withdrawn, or whatever, and therefore you should not be granting permission for this claim to proceed.  It is completely futile.

MR HARWOOD:  My Lord, I have not seen exactly what was said to the court below, but it does not seem ‑‑

MR JUSTICE KENNETH PARKER:  In my experience that would ordinarily be the response, because if you just take the position this claim is likely to succeed and so we are not opposing permission, it makes your position on costs a bit more difficult; that is the defendants’ position. 

MR HARWOOD:  Indeed.  In a sense the defendant is simply in this position, that we had identified a legal error in pre‑action correspondence.  The defendant accepts that legal error (inaudible) that does not amount to ‑‑ and accepts it is an unlawful decision, and the consequence of that has got rid of the decision, ultimately by revocation, but after proceedings were brought and proceedings had to be brought within time.

MR JUSTICE KENNETH PARKER:  Yes, but you do not need permission dealt with within any particular time limits.  A defendant can even say please do not deal with permission yet because we are considering whether we are going to revoke.  We are taking counsel’s opinion on this situation.  It is taking a bit of time, so please hold off on permission because if we get an unfavourable view, this could all go away in the sense that the court need not get involved at all, save for any issue as to costs.

MR HARWOOD:  Yes (inaudible).

MR JUSTICE KENNETH PARKER:  It is slightly different if you are saying carry on with considering permission on the substance, but we are not actually objecting to this.

MR HARWOOD:  And, my Lord, the position quite simply is that in these proceedings one of the objectives was to get rid of the section 73 permission.  That has succeeded.  It succeeded because of legal errors.  Where something else has moved on, there may be a little bit of doubt about what happened.

MR JUSTICE KENNETH PARKER:  But what was your risk if you held back, because admittedly the three‑month limit would go, but it would be extremely difficult, would it not, for the defendant to take any time point if something went wrong with the revocation procedure, and indeed ‑‑ I mean, you could have written saying, well, you have got all these problems about compensation and agreement, nothing to do with us, you sort that out, but if we do hold our hand, we would not expect you to be taking any time points against us, and it is still in the discretion of the court, of course, but in these circumstances it is very difficult to refuse to grant further time, wouldn’t it?

MR HARWOOD:  My Lord, it depends what would have happened.  My Lord will of course appreciate that it does take exceptional circumstances.   The (inaudible) guidance note says that for an extension of time, and ordinarily the exceptional circumstances you rely on, actually for very good reasons you didn’t know about it, a decision of that sort, rather than the party is well able to bring proceedings ‑‑ matters of course which the court and the parties have to elide, is that on a planning permission, it is not simply ourselves as the claimant, as it were, and the Council, but there are the interests of the applicant for planning permission, or the various land owners have potential (inaudible) in this case.  Whilst of course the Council may find it a little bit harder to turn tail, but it is perfectly entitled to say: well, actually we have considered (inaudible) and we are not prepared to revoke.  The interested party is quite well placed to say: look, this is out of time in terms of bringing a challenge to it.  So, simply relying on the exercise of discretion also delays what is actually the most important thing in the public interest, which is to sort out this particular unlawful decision.  A quicker result will have been achieved of course by the parties filing on a fairly short basis with a consent order and getting an order to the judge or a master in short order.  Quite what the Council's motivation is is a matter for my learned friend to explain, but it also has to be borne in mind that the cost of getting to this point of the Council acknowledging the legal error would have been borne by the potential claimant (inaudible) if he then simply then sat around waiting for the revocation process to (inaudible).  My Lord, the key factor is the revocation can hardly ever be done, and certainly was not done in this case, before proceedings had to be commenced in the normal way, and to bring those proceedings in an efficient manner within that process.  So, my Lord, for those reasons, we are entitled to it.  This is a case which essentially we won and which it was reasonable to bring.
We can perhaps deal with quantum after we have dealt with principle.  But I am in my Lord's hands on that.

MR JUSTICE KENNETH PARKER:  Yes.

MR KIMBLIN:  My Lord will have observed the activity on this side, and I have looked at both acknowledgments of service from counsel and the interested party.  The Council put in a short Acknowledgment of Service which appended the draft order and said “The Council accepts that permission pursuant to the section 3 application should be quashed, indicated as much in protocol correspondence, used the provisions of section 97 to make an order to revoke permission, copy attached, interested party has indicated its assent.  No objections are anticipated, would come into effect upon the advertising of the order in the absence of objection.  The court is invited to adjourn consideration of permission in this case until a date not before 11 March 2013.  By that date it is likely that the impugned permission would in any event have been revoked.  In those circumstances, these proceedings will fall away.”

MR JUSTICE KENNETH PARKER:  So you are asking until 11 March, did you say? 

MR KIMBLIN:  Until 11 March.

MR JUSTICE KENNETH PARKER:  But permission was actually given on 11 February.  How did that come about?

MR KIMBLIN:  I do not know the answer to that.  The interested party put in an Acknowledgment of Service along the same lines settled by leading counsel rather more eloquently than the material which I put on the Acknowledgment of Service ‑‑ whether it is mine I am not sure ‑‑ in which it was said by the interested party that it accepts that permission would go, but did not resist the grant of permission in this case for the reasons which they had explained. "Continuation of these proceedings is wholly unnecessary and will be rendered academic upon confirmation that permission has been revoked.  The court is invited to stay these proceedings until that revocation has taken place.  For the avoidance of doubt and notwithstanding the claimant's statement, no order as to costs is being sought in favour of the IP.  It is inconceivable that the claimant could have ever been under the apprehension such an order would be made."
So that is the tenor of matters at that stage.  Can I make these very short points, in what is really a very straightforward issue.  The first point is that we are dealing here with an unusual species of planning permission.  It is not the sort of point taken by the claimant which leaves the interested party without their ability to (inaudible) to their development, which is the usual situation.  This is, in reality, and it is why there are lots of errors in this respect, in reality its varying the condition.  As a matter of law it gives rise to a new permission.  So what did the interested party have at stake (inaudible) come back and ask again if that is necessary to do so.
So it is evident from the responses there that neither the Council nor the interested party felt it necessary to defend this particular permission, this variation of a condition.  What also is interesting and unusual is that it is identified that there is no objection to permission either being quashed or revoked and so while the claimant's solicitors were anxious to point out the risks in terms of compensation, in this sort of case there are not any because the valuable thing , the permission itself, substantive permission, remains extant.
The next point is to invite the court to just stand back from this.  What is the message that is being given by the Council?  The Council is saying: we are content to complain about this, we will revoke it, and that is why I say in my skeleton submissions, in the event that the Council have not been good to its word and the claimant had been misled into some sort of delay, I do submit, and strongly submit, it is inconceivable that this court would permit circumstances to arise where a public body had led a claimant to wait and then to allow a delay point to be taken against it.
So that, in my submission, in the particular circumstances of this case, leads to the conclusion where one sees that the issue of these proceedings was truly unnecessary.  The Council has said: okay, hands up, white flag, we will revoke the permission.  That is what the claimant wanted.  It was offered from the outset.  The Council did not sit back and be slow about it.  It confirmed that there was going to be no objection from the person who was likely to object.  It got the decision made, made the order and, just as predicted, no objection and the permission has now gone.  All of this could so easily have been avoided.  Quite why the claimant has shown the enthusiasm for putting £14,500 worth of work into this is still something of a mystery.
As to the granting of permission, whether that affects the position, my submission is that the Acknowledgment of Service went in in a timely way, showing the court: here is the order, and saying we are content for it to be linked to the other matter.  That is going to give rise to an oral hearing at some point, please just let us wait and see what happens.  So it is perhaps unclear why permission was given, but I would submit that it makes really little difference to the costs position.  The parties flagged to the claimant their positions very clearly.  
So it is for those reasons that the Council says no order.

MR JUSTICE KENNETH PARKER:  Yes.

MR HARWOOD:  My Lord, just a couple of points in response to that if I may.  We did not actually receive an Acknowledgment of Service, but I am not too sure how that happened, but we did not (inaudible) precisely what was said.  We do not make any point on that, but what is notable from my learned friend reading out the Acknowledgment of Service is it immediately begs the questions why on earth the Council, and for that matter the interested party, wrote Acknowledgments of Service (inaudible) simply put together and signed a consent order which would have disposed of matters entirely and if there really was going to be an issue about costs, a consent order allowing costs should then (inaudible) submissions on the (inaudible)on costs.
This is a case where there is no rational explanation for the Council going down the revocation route, and it is not the case that there would not be compensation here because if they got the section 73 permission to enable access to the use which was not being seen as being acceptable on the existing permission.  So they needed the section 73 permission to go ahead, but be that as it may, we need to go back of course to principles: who would have won?  Answer: the claimant.  Was the claimant acting reasonably in bringing proceedings?  My Lord, yes, there was a decision which the claimant needed quashing.  The time limit for bringing the proceedings was heading for expiry, and even were revocation to be pursued, and the only thing perhaps forcing the Council into the revocation was the threat of judicial review proceedings, that would be some point after the time limit for bringing proceedings.  So, my Lord, for those reasons the normal course should be followed and the claimant should receive his costs.

MR JUSTICE KENNETH PARKER:  Yes. 

MR HARWOOD:  I am simply just reminded of footnotes to the pre‑action protocol.  "Whilst the court does have a discretion under rule 3 [and so on] of the Civil Procedure Rules to allow a late claim, this is only used in exceptional circumstances. In bold type it says: “Compliance with the protocol alone is unlikely to be sufficient to persuade the court to allow a late claim."  My Lord, that is the context dealing with time limits.

MR JUSTICE KENNETH PARKER:  All right.

MR KIMBLIN:  My Lord, there is only one point, just so that my Lord has the factual background absolutely clear: there was an e‑mail which was in fact appended to my skeleton argument, and the upshot of that is that by December of last year the Highways Authority, in fact, Powys County Court and this planning authority had agreed that the section 73 application was in fact unnecessary.  Displays were fine.  So that is just to deal with the point about any value attaching to this section 73 permission.  There is no value attaching to it because it is in fact unnecessary, which sort of rather rounds off the futility of this whole exercise.
(judgment on costs)
Mr Justice Kenneth Parker:  

1.	This is an application by the claimant, Mr Paul Webb, for costs of a claim for judicial review that was brought against Hereford Council, with Bolsterstone Innovative Energy (Reeves Hill) Ltd as the interested party.  The challenge was to a section 73 planning permission that was granted on 22 October 2012.  This led to a pre‑action letter by the claimant dated 14 November 2012.  In response to the pre‑action protocol letter, the Council wrote on 14 December 2012 as follows: 

"Further to the above matter [that is the matter dealt with in the pre‑action letter], I have taken advice and have consulted with my clients.  For the avoidance of doubt our position is that we intend to revoke the planning permission of 22 October 2012.  It follows that the Council will prepare an order pursuant to sections 97 and 99 of the 1990 Act given the revocation is unopposed to the best of our knowledge.  On that basis, please will you confirm that you are content for both of us to bear our costs thus far, and that in the circumstances you do not intend to undertake judicial review proceedings." 

2.	On 17 December, shortly after that letter, solicitors on behalf of the claimants wrote to the Council acknowledging the letter of 14 December and noting that the Council was proposing to revoke the planning permission of 22 October 2012.  The letter then continued follows: 

"We do not consider that this is the appropriate route to remove the planning permission for the following reasons."

3.	Then the letter sets out the possible difficulties regarding payment of compensation, and secondly says that the obvious way of dealing with the planning permission is to quash it.  The only way that could be done of course is by proceeding with a claim and then entering into a consent order that the court would have to approve.  Thirdly, the letter refers to the need to obtain the consent, or the order needed to be confirmed by the Secretary of State, unless the owner and occupier of the land and all the persons affected by the order notified the local planning authority that they did not object.  It asked for a response to that by 19 December and said that unless there was some response it intended to issue judicial review proceedings without further notice.

4.	On 19 December there is a reply, saying that: 

"I advise that the Council intends to revoke the permission and judicial review proceedings would serve no purpose".

5.	On 2 January 2013 the Council proposes a delegated decision to revoke.  It says that the applicants for planning permission would not object and there is no reference to compensation in that decision.

6.	On 14 January the proceedings are then brought.  On 22 January, eight days later, the Council does make the revocation order and, on 31 January, pursuant to the relevant procedures, the Council advertised the order so as to receive representations, but it was on the basis of an unopposed order.

7.	Then, on 11 February, permission to apply for judicial review was granted, the proceedings having been brought.  I should say that in the meantime an Acknowledgment of Service from both the defendant and the interested party had been received by the court, and the court was aware of the position that the Council intended to revoke but nonetheless granted permission.

8.	On 14 March the revocation took effect, and on 28 March the Council did confirm that permission had been revoked.

9.	In those circumstances Mr Harwood QC says that the proper order is that the defendant should be required to pay the costs incurred by the claimant in bringing those proceedings.  He submits, firstly, that the Council here adopted an unusual procedure by seeking a revocation of the order.  He submitted that the normal procedure would have been to allow the claimant to serve a claim in short form and that the Council and, if necessary, the interested party could simply have then entered into a consent order to dispose of the matter rather than going down the revocation route.

10.	He also relies, secondly, on the uncertainties that that procedure of revocation would cause: firstly, it would raise potential matters of compensation and matters of either confirmation by the Secretary of State or non‑opposition by any party that might be involved.  Mr Harwood points to the fact that the time period for bringing claims, that is the final time period of the three months, was about to expire and had indeed expired by the time that the Council had made the revocation order.  Therefore Mr Harwood submits that had the claimant held back, there was a real risk, particularly taking account of the position of the interested party, that the claim would not be allowed to proceed because there would be no exceptional circumstances, and the time period for bringing such a claim would simply have expired.

11.	In my judgment, the overriding principle in a situation of this kind is that costs should not be incurred in bringing applications for judicial review unless it is shown that it was reasonably necessary in the circumstances to do so.  The overriding objective of saving costs in those circumstances is clear and is well-established by authorities, not only in the area of judicial review, but in civil litigation generally.  There are no special principles as such that apply to public authorities, but the principle that costs should be incurred only when it is reasonably necessary to do so prevails in favour of local authorities as well as other defendants, and indeed claimants, if there are other necessary steps in the action for which the other party does claim costs.

12.	I have to look at this situation in the round.  It seems to me that the Council made plain that, whatever might be the procedure that had been followed in other similar matters, in this particular case they were going to proceed by way of revocation.  There is nothing that I have seen that would suggest that there would be real difficulty in adopting that route in this particular case.  In my judgment it could, as an objective matter, be reasonably contemplated that revocation would be achieved.  There could be issues in relation to affirmation, consent or compensation, but they essentially were matters for the Council to deal with and, in my judgment, there is no reason to believe, on the objective material, that the Council would not be able to deal satisfactorily with those matters so as to complete the procedure that they had in mind.

13.	Notwithstanding that the claimant had been put on notice as to that very firmly in two letters, the claimant nonetheless decided to launch the legal claim for judicial review.
 
14.	The principal point pointing in the other direction was any potential risk to which the claimant might be exposed by waiting to see whether the revocation route was successful or not.  It is certain on the chronology that, had it so waited, the time period of three months would have expired.  The question then arises whether, again seen as an objective matter, there was a real risk that if a claim was then launched following a failure to obtain a revocation order, and therefore necessarily, that this claim would have been judged to be out of time.  I dismiss that as a real risk in these circumstances.  In my judgment, no court would have denied the claimant permission to continue with a claim to establish an undisputed illegality in the challenged decision on the basis that it had exceeded the time limit in the circumstances that had here arisen, namely that it had received an assurance from a public authority that it was proceeding by one route, that the local authority had failed to achieve that objective and that it had been compelled to bring legal proceedings.  Fairness would simply require that time be extended for bringing this claim.

15.	I fully acknowledge the point that there was an interested party in this case that might have sought to raise issues in relation to time, but again my judgment is that no court, looking at this situation as a whole, would have concluded, despite any such representations, that the claimant would be precluded from bringing the claim.

16.	Therefore in these circumstances I take the view that the costs that are sought were not reasonably necessary in order for the claimant to achieve the objective that it wished to achieve, namely the nullifying of the challenged decision.  Therefore, having regard to that overriding objective, I am not prepared to make an order in favour of the claimant for those costs.

MR HARWOOD:  My Lord, I ask for permission to appeal.  I have raised an important point of principle which the Court of Appeal should be able to deal with
.
MR JUSTICE KENNETH PARKER:  No.  It is a matter of discretion.  In my judgment, I have had regard to all relevant principles which I have applied, and you must go and ask the Court of Appeal.

MR KIMBLIN:  My Lord, I think that concludes the matters which are required to be dealt with.

MR JUSTICE KENNETH PARKER:  Yes.  Thank you very much indeed.