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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Loader & Ors, R (on the application of) v Poole Borough Council & Anor [2009] EWHC 1288 (Admin) (18 March 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1288.html Cite as: [2009] EWHC 1288 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18th March 2009

1. MR JUSTICE SALES:
2. 1. This is an application for judicial review of a decision by the defendant to grant planning permission for development of land near Poole Harbour to demolish five existing residential buildings and erect six two and three-storey blocks of flats. The claimants are local residents who object to the proposed development. A useful description of the site is set out at paragraph 16 of the inspector's decision letter dated 10th July 2006 in respect of a previous, unsuccessful application by the developer, Ravine Lifestyle Limited ("Ravine"), as follows:

"The appeal site is situated within a mainly residential area about 4km east of Poole Town Centre. The Luscombe Valley SSSI/Local Nature Reserve is situated immediately to the east of the appeal site and the Evening Hill Conservation Area is immediately to the west of it. To the south of the site is Shore Road (the B3369) beyond which lies Poole Harbour."

3. 2. Planning permission on the basis of the present application was voted for at a meeting of the defendant's Planning Committee on 1st April 2008, at which the committee was addressed by a representative of the local residents who objected to the proposal and by representatives of the developer, Ravine. The committee voted five to three to grant permission.
4. 3. The formal planning permission decision notice was issued on 22nd May 2008. Permission was granted subject to various conditions. The reasons for the conditions were set out in summary form in the notice. The particular issues affecting the development were its implications for the character of the area, its implications for protected trees and its implications for living conditions enjoyed by the occupiers of neighbouring properties. Most of the conditions in the permission notice related to the second and third of these matters. However, Mr Straker QC, for the defendant, drew my attention to condition 11 and the reasons given for it, which went somewhat wider and touched on the first matter. The text of the notice in relation to condition 11 and the reason for it was as follows:

"The proposals for the landscaping of the site, as shown on the approved plans (including provision for landscape planting, the retention and protection of existing trees and other site features, walls, fencing and other means of enclosure and any changes in levels) shall be carried out as follows:

a) the approved scheme shall be fully implemented with new planting carried out in the planting season October to March inclusive following occupation of the building(s) or the completion of the development whichever is the sooner, or in accordance with a timetable to be agreed in writing with the Local Planning Authority;

b) all planting shall be carried out in accordance with British Standards, including regard for plant storage and ground conditions at the time of planting;

c) the scheme shall be properly maintained for a period of 5 years and any plants (including those retained as part of the scheme) which die, are removed or become damaged or diseased within this period shall be replaced in the next planting season with others of a similar size and the same species, unless the Local Planning Authority gives written consent to any variation; and

d) the whole scheme shall be subsequently retained.

Reason -

In the interests of visual amenity, to ensure that the approved landscaping scheme is carried out at the proper times and to ensure the establishment and maintenance of all trees and plants in accordance with Policies BE1, BE2 and H13 of the Poole Local Plan First Alternation Adopted March 2004 (as amended by the Secretary of State Direction September 2007)."

5. 4. At the end of the permission notice, under the heading "Informative Note(s)", the following was set out:

"5. Town and Country Planning (General Development Procedure) (Amendment) Order 2003

The proposed development has been tested against the following policies of the Development Plan and, in the opinion of the Local Planning Authority, is not in conflict with the following policies:

a) The proposal will not affect the character and amenities of the area - Policy BE1

b) Residential Amenity will not be affected adversely - Policies H4 and H13

c) No protected trees will be affected - Policy NE28

d) Recreation contribution agreed - Policy L17

e) A scheme of mitigation is being prepared to reduce harm to protect lowland heathlands in and around Poole - Policies NE15, NE16 and NE17

f) The proposals integrate existing and proposed landscaping to enhance visual amenities - Policy BE2

g) The proposals respect the topography of the coastal area - Policies BE3 and NE23

h) The proposed development will mitigate against harm to protected species - Policy NE21

i) The development does not prejudice Public Open Space - Policies NE29 and L1

j) The proposals have mitigated against flood risk - Policy NE31

k) The proposals secure 40% towards affordable housing - Policy H5

l) The proposals offer cycling and parking provision and encourages new transportation infrastructure - Policies T2, T11 and T13."

6. 5. Local residents continued to object to the granting of permission for this development, and it is a group of local residents who have brought the present challenge to it.
7. 6. The relevant factual background to the present challenge includes previous attempts by the developer to secure planning permission for development of the site by way of buildings containing residential flats in different configurations. The first application by Ravine was made in 2004. It related to a development proposal for five blocks of three or four storeys. The defendant refused planning permission and Ravine appealed. The appeal was heard by a Planning Inspector, who issued the decision letter dated 10th July 2006 to which I have already referred. The Inspector rejected the appeal, in particular for reasons relating to implications of that proposed development for the character of the area. The relevant part of his reasoning is set out at paragraphs 26 to 30 of his decision letter as follows:

"26. Without doubt the proposed development would be far more conspicuous in views from the south and south-east than the dwellings that currently occupy the appeal site. The proposed landscaping might in time soften the impact of any additional build development but it would not screen it from view. Conspicuousness is not of itself necessarily unacceptable, however, and almost any scheme to redevelop the site at the more efficient densities anticipated in PPG3 is likely to include more conspicuous built development. I am concerned, nevertheless, that the expedient of replacing each of the existing dwellings with an apartment block on more or less the same footprint is not necessarily an acceptable way for the site to be re-developed. Siting is, of course, a reserved matter but I am not satisfied that a 5 block arrangement is appropriate at this location. The blocks are likely to be closely spaced, as shown in the illustrative plans, and from Shore Road and other vantage points to the south and south-east it seems to me that the new buildings could be perceived as one large and somewhat over-powering development. The fact that some of the blocks are 4 storeys tall obviously emphasises their prominence. The photomontage submitted by Dr Jackson illustrates the likely impact clearly albeit that the lack of detail, the use of a 70mm lens and the absence of any softening vegetation exaggerate the point - see Doc 18. In practice the apartment blocks would sit within attractively landscaped grounds.

27. Overall, it is not so much the height and bulk of the individual blocks that concerns me - although I am concerned that 4 storeys is possibly excessive at this location - so much as their combined impact. In my opinion the illustrative layouts do not properly reflect the pattern of generally large buildings set within spacious verdant grounds that is so characteristic of the Critchel Mount area. Reducing the number of blocks and re-considering their siting and height afresh with this point uppermost in mind is likely to create a much more acceptable form of development at this sensitive and important site.

28. The Council also draws attention to the repetitive design of each block and the introduction of flat roofs in an area where they are generally absent. I am not convinced that these concerns are well founded. For my part the buildings shown in both sets of illustrative plans are well designed and appropriate to their coastal context. To my mind they would complement the innovative and individualistic style of many of the recent developments to be found along the edge of Poole Harbour. I am not concerned that the individual blocks should necessarily be of a different design and I see no overriding objection to a flat roof arrangement. Attention is also drawn to the regimented layout favoured by the appellant which the Council claims is not reflected in the wider area. I do not discount this point but I am satisfied that this matter could be addressed at reserved matters stage.

29. The Council and others also refer to the views that would be available from the adjoining Luscombe Valley. Any blocks of flats on the appeal site would be visible from the area close to Shore Road but intervening vegetation would obscure any views of the buildings from further inland. On balance I am satisfied that the appeal site could be redeveloped without undue detriment to views available from this area. Views of and across the appeal site from the north and west are largely screened by intervening buildings and mature vegetations.

30. In sum, therefore, while I see no overriding in-principle objection to a redevelopment scheme that would replace the 1/2 storey dwellings on the appeal site with blocks of flats, I am not convinced that the outline proposal for 5 apartment blocks containing 43 flats in total is acceptable. Bearing in mind the illustrative plans, it seems to me that the proposed development would be perceived from the south and south-east as an incongruous and obtrusive form of development that would damage the character and appearance of the area. As such I consider the proposal to be contrary to Policies BE1, H13 and NE23 of the adopted and up-to-date Poole Local Plan and Settlement Policy H of the Bournemouth, Dorset and Poole Structure Plan."

8. 7. Ravine then reconfigured their development proposal somewhat to try to meet the objections to the first proposal, and on 2nd March 2007 made a second application for planning permission for their revised proposal, under which it was proposed to build four three-storey blocks. The defendant's planning officer, Mr Staniland, produced a report recommending refusal of permission. Under the heading "Impacts upon character and appearance of the area", he said:

"Though the development now comprises four rather than five blocks and despite the two blocks nearest to Alington Close having been reduced by one floor the cumulative impact of these buildings within the landscape by reason of their size, bulk and siting, that precludes the provision of suitable gaps in proportion with the buildings fronting Shore Road, remains an obtrusive and incongruous form of development. The proposal, in effect, fails to adequately address the concerns of the Planning Inspector and cumulatively will be perceived as one large and somewhat over-powering development that fails to adequately integrate the development into the surrounding sensitive and important area."

9. 8. The defendant's Planning Committee voted unanimously to refuse permission. In particular, they resolved:

"1 (Non Standard Reason)

The proposal would result in an intrusive and incongruous form of development by reason of its siting, height and bulk. Having regard to the submitted Environmental Impact Appraisal the excessive development would be dominant in respect of the character and appearance of the shoreline to the south and Critchel Mount to the north west. As such the proposal is contrary to Policies BE1, NE23, NE29, H4 and H13 of the Poole Local Plan First Alteration (Adopted 2004), nor would it meet the aspirations set out in Section 2 of the adopted Supplementary Planning Guidance 'Shoreline Character Areas' and the previous appeal decision which identified the need to reflect the pattern of large building set within spacious verdant grounds."

10. 9. Ravine again sought to reconfigure the development on the site and made a further application for planning permission on 10th December 2007. This time the application was for permission to construct six blocks of two or three-storey height. In particular, the height of the blocks closest to the shore had been reduced. This had been done in an attempt to meet the objections to Ravine's previous development proposals, in particular so far as concerned their implications for the character of the area. This is the application to which the present proceedings relate.
11. 10. The defendant's planning officer, Mr Howells, produced a report recommending the grant of planning permission for this application. The report rehearsed the relevant planning history. It referred to and summarised the Planning Inspector's previous decision. It also referred to and summarised the Planning Committee's decision refusing permission in 2007 in the following terms:

"2007: A planning application was refused for the erection of 4 x 3-storey blocks (32 flats) with basement car parking and associated works and landscaping. The reasons for refusal were harm to the shoreline character area; lack of affordable housing; harm to the Luscombe Valley SSSI and lack of contributions. An appeal has been lodged against this decision and a public inquiry will be held in Summer 2008."

12. 11. Under the heading "Planning Considerations", the officer set out a number of points, including the following:

"Having regard to the Inspector's decision letter the proposals have been extensively modified to include greater separation between the blocks, a reduction in the number of flats from 43 to 32, and substantially reduced building mass, particularly fronting Shore Road...

Whilst the Inspector suggested that reducing the number of blocks would be advantageous, the proposals instead propose 6 smaller blocks. Their size, separation and setting are wholly in keeping with the character and appearance of the area, are appropriate in style to their shoreline location and fully address the on-site amenity needs of residents without harm to their wider surroundings."

13. 12. As I have said, the Planning Committee considered and voted on the application at a meeting on 1st April 2008. They resolved by a majority to grant permission. The formal planning permission notice was issued on 22nd May 2008. The claimants seek to quash that grant of permission.
14. 13. Mr Edwards, for the claimants, puts forward five grounds of challenge. First, he says that the planning permission should be quashed because the council failed to set out summary reasons explaining the decision as required by Article 22(1) of the Town and Country Planning (General Development Procedure Order) 1995. As to this, the defendant denies there was any breach of Article 22, and in the alternative submits that, even if there was a breach, this court should not, in the exercise of its discretion, quash the planning permission. Second, Mr Edwards submits that the grant of permission was unlawful because it was inconsistent with the previous stance of the defendant that similar development proposals in 2004 and 2007 were unacceptable, and with the previous decision of the Planning Inspector in 2006. Third, Mr Edwards submits that the report by Mr Howells to the Planning Committee was misleading and hence caused the committee's decision to be unlawful. Fourth, Mr Edwards submits that, in light of the planning history in respect of the site, the claimants had a legitimate expectation that planning permission would be refused on this application. Fifth, Mr Edwards submits that the grant of planning permission was irrational. I will deal with these contentions in turn.

(1) Article 22

15. 14. Article 22 of the Town and Country Planning (General Development Procedure Order) 1995 provides as follows:

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

(a) planning permission is granted, the notice shall include a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision;

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

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

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

16. 15. The claimants submit that the defendant failed to fulfil its obligation under Article 22(1)(b)(i), in that the planning permission notice did not include a summary of the defendant's reasons for the grant of permission. Sullivan J explained the rationale behind Article 22 in R (on the application of Wall) v Brighton and Hove City Council [2004] EWHC 2582 Admin at [52] to [54] as follows:

"52. Over the years the public was first enabled and then encouraged to participate in the decision-making process. The fact that, having participated, the public was not entitled to be told what the local planning authority's reasons were, if planning permission was granted, was increasingly perceived as a justifiable source of grievance, which undermined confidence in the planning system. Thus the requirement to give summary reasons for a grant of planning permission should be seen as a further recognition of the right of the public to be involved in the planning process. While the requirement to give "full reasons" for a refusal of planning permission, or for the imposition of conditions, will principally be for the benefit of the applicant for planning permission, who will be better able to assess the prospects of an appeal to the Secretary of State, the requirement to give summary reasons for the grant of planning permission will principally be for the benefit of interested members of the public. The successful applicant for planning permission will not usually be unduly concerned to know the reasons why the local planning authority decided to grant him planning permission.

53. Parliament decided that this extension of the public's rights under the Planning Code was necessary even though in many cases it could reasonably be inferred that the members would have granted planning permission because they agreed with the planning officer's report (see Fabre above). Parliament could have, but did not, limit the obligation to give summary reasons to those cases where the councillors did not accept their officers' recommendation.

54. The new requirement does not impose an undue burden upon local planning authorities. Officers' reports customarily include recommended reasons for refusal of planning permission or for the imposition of conditions. Members are free to debate those recommendations and agree or disagree with them, adding or striking out reasons for refusal or conditions. When officers recommend the grant of planning permission there is no reason why their reports should not similarly contain recommended summary grounds for so doing. Very often the conclusions in an officers' report will in effect be a summary of the grounds for granting planning permission. The members will be able to adopt or amend the officers' summary grounds, but the requirement to set out summary grounds in the decision notice will ensure that the members decide in public session why they wish to grant planning permission."

See also R (on the application of Midcounties Co-operative Limited) v The Forest of Dean District Council [2007] EWHC 1714 Admin at [26], per Collins J.

17. 16. In R (on the application of Tratt) v Horsham District Council [2007] EWHC 1485 Admin, Collins J said this at [28]:

"I have no doubt that the reasons stated in the circumstances of this case do not meet what was required. It may be that in an entirely straightforward case where there have been no objections to the relevant application (and that may well be often the situation) it is unnecessary to do more than to state that the proposal was consistent with the plan. It would be helpful, I think, to indicate that no objections have been raised to it and that would make the position clear. Perhaps adding there were no material considerations which pointed in any other direction might be sufficient. But it is a dangerous approach for Councils to make. It lays them open to claims that insufficient reasons have been given and it would be prudent and sensible in all cases for Councils, and obviously for officers in making their reports, to bear in mind the need that summary reasons must deal in summary form with the substantial issues which have formed part of the consideration of the planning application and that they are likely to be used by objectors to see whether there may be some reason to seek judicial review. If reasons are defective and do not deal with what they ought to deal with, that may lay the Council open to a judicial review claim."

18. 17. I have set out above the relevant parts of the planning permission notice in this case. I accept the claimants' submission that the notice did not properly comply with Article 22(1)(b)(i), in that it failed to include a summary of the defendant's reasons for granting the permission. In my judgment, simply stating that "The proposed development has been tested against the following policies of the Development Plan and, in the opinion of the Local Planning Authority, is not in conflict with [identified policies]" is insufficient compliance with the requirements of Article 22(1)(b)(i). That statement does not identify on the face of the notice a summary of the positive reasons why the defendant decided to grant permission.
19. 18. Mr Straker, for the defendant, made three submissions against this. First, he sought to rely upon the decision of the Court of Appeal in R (on the application of Roudham and Larling Parish Council) v Breckland Council [2008] EWCA Civ 814, to suggest that what was said in the notice was adequate. In that case Buxton LJ gave the lead judgment of the court on a renewed application for permission to move for judicial review in relation to a grant of planning permission. He said this at [9]:

"The relevant part of the notice in the present case reads:

'This decision to grant planning permission has been taken having regard to the policies and proposals set out in the Breckland District Local Plan adopted September 1999 summarised below, and to all relevant material considerations, including Supplementary Planning Guidance.

ENV22. Proposals for farm diversification will be permitted subject to criteria'.

The Parish Council said that that was not good enough. The reasons simply recited part of the Development Plan without explaining how the Plan had been applied in this case. I do not agree. While, as the Judge said, the decision could helpfully have been spelled out slightly more fully, if only to avoid objections of the present order, it is quite clear that the decision-maker is saying that his conclusion is that the project is indeed one for farm diversification, as described in the Plan, and fulfils the requirements for the granting of permission for such development that are set out in ENV22. Objections previously raised, mainly in terms of noise and traffic, had been addressed by the conditions imposed on the grant, thus meeting the 'criteria' referred to in ENV22. The potential litigant, if he was to make progress, accordingly knew that he had to establish that the project was not one for farm diversification. That has never been suggested, nor could it be. And I would also respectfully agree with the observation on this point of the very experienced Deputy Judge, who wrote:

'It was clear from the recitation of the policies why the proposal was considered to comply with them, and the conditions and the reasons for their implementation constituted an implicit explanation that the concerns of those who had objected (on noise and highway grounds) were considered to have been met.'"

20. 19. I do not consider that the judgment in that case supports the defendant's submission here. In that case, the notice identified and summarised a policy (ENV22) which stated positively that proposals for farm diversification would be permitted subject to conditions. It was clear in context that the planning authority regarded the proposal as one for farm diversification. Therefore, a sufficient explanation of the positive reasons for granting planning permission was given on the face of the notice, as the court held. But in our case the defendant did not identify and summarise any policy which positively stated that an application of the kind in question would be allowed. Therefore, unlike in Roudham and Larling Parish Council, the notice in our case did not, on its face, identify and summarise any positive reasons why the defendant granted permission.
21. 20. Secondly, Mr Straker put before the court the terms of Policy BE1 referred to in the decision notice. Policy BE1, headed "Design Code", stated:

"Proposals will be permitted provided that:

(i) they respect the setting and character of the site and surrounding area and adjoining buildings by virtue of their siting, scale, density, massing height and appearance."

22. Mr Straker suggested that this meant that the present case was equivalent to Roudham and Larling Parish Council. I do not accept this submission. The difficulty with it is that this positive aspect of the policy is not summarised in the decision notice, unlike the position in Roudham and Larling Parish Council.
23. 22. Thirdly, Mr Straker referred to the reasons given for condition 11 in the decision notice and submitted that those reasons, taken with the final part of the notice, were sufficient to provide summary reasons adequate to satisfy Article 22. I do not accept this. The reasons in relation to condition 11 do not explain positively why planning permission was granted.
24. 23. However, having said all this and concluded there was a failure to comply with Article 22, it should be observed that the failure was very limited in nature and could not have caused the objectors to be in any real doubt about the reasons for the grant of permission. The practical reality, as the Inspector's decision letter in 2006 had made clear, was that there was no overriding objection in principle to replacing the existing buildings on the site with new ones, provided an acceptable design could be achieved. The owner of the site was entitled to develop it provided there was no good reason to object. Therefore, the nature of the consideration required to be given to the application in issue in this case was to examine whether various objections to it based on the relevant policies had been sufficiently accommodated to remove them. The decision notice did give summary reasons why that was the case. Therefore, the failure of the defendant to articulate in the decision notice its positive reasons for granting planning permission was, in the context of this case, of very limited scope and significance. This is a factor of importance when one considers the application of the court's discretion as to relief, to which I will turn after considering the claimants' other grounds of challenge.

(2) The allegation that the grant of planning permission was inconsistent with the earlier decisions to refuse permission for the development of the site

25. 24. Mr Edwards relied on R (on the application of Chisnell) v the London Borough of Richmond upon Thames [2005] EWHC 134 Admin at [18], where Newman J referred to authority and said:

"The basic position can be stated as follows: (1) The planning history in relation to the site is a material consideration in connection with a planning application (see Spackman v Secretary of State for the Environment and another [1977] 1 All ER 257). (2) A previous appeal decision is a material consideration in connection with a planning application including a subsequent appeal to a different inspector (see North Wiltshire District Council v Secretary of State for the Environment and others [1993] 3 PLR 113, 122F-H). The reason why previous appeal decisions are a material consideration is as Mann LJ pointed out:

'One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities.'

Mann LJ went on to add:

'But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest, and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.'"

Para. [19] of the judgment is also relevant:

"Thus analysed, the principle is straightforward enough; that in the planning process the previous history in connection with the site, including decisions in connection with the site, are material considerations, but anybody having any power to reach a decision in connection with the site at a subsequent date has a discretion. The discretion must be exercised in accordance with their own judgment. The requirement for consistency does not mean that they must be slaves to the previous decision and are in any sense bound by it, or must therefore come to the same conclusion. Their judgment and discretion is informed but not fettered by the history."

26. 25. The planning history in relation to a site may be relevant in two ways. First, previous decisions in relation to a site are material considerations to which the decision maker should have regard; secondly, previous decisions in relation to a site may be relevant to arguments that a decision maker has acted irrationally if he proceeds in an inconsistent way without any rational explanation therefor. Neither of these principles assist the claimants here. The Planning Committee was informed of the relevant planning history and took it properly into account. It did not act irrationally in deciding that the modified development proposals were sufficiently different from what had gone before as to justify the grant of permission in the present case. The Committee's assessment of the impact of the new proposals was a matter of judgment on the planning merits and cannot be said to have been irrational.

(3) The allegation that the officer's report to the Committee was misleading

27. 26. The claimants submitted that Mr Howells' report to the Planning Committee was misleading in two respects: (i) it did not properly summarise the effect of the Inspector's decision letter and (ii) it did not properly summarise the reasons for the decision to refuse planning permission in 2007.
28. 27. I reject both these points. In my view the report contained a fair and accurate summary of the planning history. It is clear that the Committee was not affected in any way by a mistake of fact, such as would be required by the principle set out in E and R v Secretary of State for the Home Department [2004] EWCA Civ 49 at [66].

(4) The allegation that the defendant acted in breach of legitimate expectation

29. 28. The basis for the alleged legitimate expectation that planning permission would be refused is said to be the planning history and refusal of planning permission in the past. I reject this submission also. The previous decisions were in respect of schemes which were materially different from the present scheme. No legitimate expectation as to how the defendant would treat the present application could be spelled out of how it had treated the different applications in the past.

(5) The allegation of irrationality

30. 29. I reject this submission for the reasons already given above.

Discretion and delay

31. 30. Finally, I turn to the questions of discretion and delay. Sullivan J in Wall said this at [55]:

"A failure to include the summary reasons in a decision notice will not render the grant of planning permission null and void (see Brayhead …). On the other hand, such a failure could not be described as 'so nugatory or trivial that the authority can safely proceed without remedial action' (see London & Clydeside …). If the defective decision notice is challenged in an application for judicial review the court will have a discretion to quash the notice. How it exercises that discretion will depend upon the particular facts of the case, where it fits within the 'spectrum of possibilities referred to by Lord Hailsham in London & Clydeside."

32. 31. In my judgment, this is a clear case for exercising the court's discretion to refuse relief. In the present context, the failure to comply with Article 22 was so trivial that the defendant can safely proceed without remedial action. I have rejected the substantive challenges to the decision. In truth, the application for planning permission was carefully and properly considered and no-one involved in the process could have been left in any real doubt about the defendant's reasons for reaching its decision, however much they might disagree with that decision.
33. 32. It is not strictly necessary to deal with the question of delay. It is sufficient for me to indicate that I was not impressed with the defendant's submissions on the question of delay and would not have refused relief on that ground.

Conclusion

34. 33. For the reasons I have given, this application for judicial review is dismissed.
35. MISS DEHON: My Lord, I am grateful. My Lord, I thought I should canvas with you very briefly whether this morning you received a letter from Mr Straker in relation to one submission that was made yesterday that seemed to give inaccurate information about the Committee --
36. MR JUSTICE SALES: Yes, I did receive that and it was not a matter that was taken into account in the judgment.
37. MISS DEHON: I am grateful. My Lord, one last matter. There is an application for leave to appeal on the substantive decision reached in the judgment. Even though you have refused to grant relief in this case, you made a clear finding that the reasons in this matter did not comply with Article 22 because they did not set out the positive basis upon which planning permission was granted, and we have two bases for applying for leave to appeal in relation to that finding. The first is that that way of approaching the matter has never before been canvassed either by courts at this level or by the Court of Appeal. Even in the Roudham case it was not argued or decided on the basis that there were positive reasons given and therefore they were sufficient. Secondly, you will have seen from the other decision notices which were proffered in the second bundle that many of the local authorities that were canvassed give decisions in much the same form, whether they are positive or negative policies involved. So it is a matter of some concern that that sort of decision may well not comply with Article 22. On those two bases it is requested that permission be given for leave to appeal.
38. MR JUSTICE SALES: I do not need to hear from you, Mr Edwards.
39. An application is made by the defendant for permission to appeal. The ordinary position is that appeals are against orders, not against the reasons given in judgments. There will be a departure from that ordinary approach only in very exceptional cases, this is not an exceptional case. Accordingly, I refuse permission to the defendant to appeal.
40. MISS DEHON: My Lord, there is one final matter, the question of costs. Both the defendants and the claimants have produced a summary assessment, but I understand the claimants may be asking for a detailed assessment of costs.
41. MR JUSTICE SALES: Right. You are applying for your costs, are you?
42. MISS DEHON: We are applying for our costs.
43. MR JUSTICE SALES: Right. Mr Edwards.
44. MR EDWARDS: My Lord, I would simply oppose the application for costs on the basis that the main ground of challenge, the ground on which permission was clearly granted, was found in our favour, albeit you have exercised the court's discretion not to quash the planning permission, it is a sort of one all draw and I would oppose the principle of costs. I would also oppose the costs schedule that has been produced.
45. MR JUSTICE SALES: I do not think I have seen it.
46. MR EDWARDS: There were a number of items which we would dispute were you minded to grant cost, but in the circumstances of this case I would submit that it would be inappropriate. They clearly lost, the permission was wrong. Permission was granted by this court to bring the application. You have found in that ground in our favour, albeit you have exercised the court's discretion not to quash the planning permission. I think that would be penalising my clients more than necessary.
47. MR JUSTICE SALES: On the principle of costs, I consider that costs should follow the event. The question of discretion was clearly raised in the defence and the claimants proceeded on notice that that was a basis on which they could lose. Therefore I award the defendant its costs against the claimants. So far as summary assessment is concerned, I did not have a schedule or summary assessment.
48. MISS DEHON: This schedule is very much yesterday's schedule, which was given to the claimants some time ago, bar that it includes my fee for today's attendance.
49. MR JUSTICE SALES: Right. Has Mr Edwards been provided with this?
50. MR EDWARDS: My instructing solicitors have been, and on instructions they do oppose a number of the items, matters of photocopying, duplication and other matters.
51. MR JUSTICE SALES: The first question is whether I deal with matters on a summary basis, but if you had proper notice of it then I will do that. I will treat the application as made and, Mr Edwards, you can make your submissions.
52. MR EDWARDS: Certainly, my Lord. If I may just refer to a note that has just been handed up to me by those instructing me. There is a question firstly with regards to Sharpe Pritchard's fees. There is the questioning of 17 letters to counsel, the questioning of 14 letters to the agents, and I am instructed they do not know who the agents may be. There is also the question of a one hour telephone conversation with counsel's clerk. No details as to what that might be. There is a question -- and I think this is a legitimate one -- of mass photocopying of Mr Howells' witness statement, which I think, as you yourself and we have argued, was wholly irrelevant to the proceedings. I do not see why that should be paid for by the clients.
53. MR JUSTICE SALES: Do I have that?
54. MR EDWARDS: That will be under "Documents preparation". The whole witness statement, it is not actually detailed in here. These are one of the matters that we would draw to your Lordship's attention.
55. MR JUSTICE SALES: Yes.
56. MR EDWARDS: There is an element, I am also instructed, on duplication with regards to leading counsel and junior counsel. Those are the matters I have received a note from my instructing solicitors to draw to the attention of the court.
57. MR JUSTICE SALES: Yes, thank you.
58. MISS DEHON: My Lord in relation to item 4, the 17 letters, apart from canvassing substantive matters, they were also matters enclosing further documents and witness statements, and that is why the number appears as it does. In relation to item 5, that is slightly misleading in that it is not one single long telephone call, but several telephone calls totaling one hour. Finally, as you pointed out, your Lordship, the photocopy costs do not obviously appear on the face of it, and in any event we would say that the costs in total are reasonable.
59. MR JUSTICE SALES: Thank you.
60. There is an application for summary assessment of costs. When the court is invited to assess costs on a summary basis it is always necessary to paint with a relatively broad brush, that is the nature of the exercise. Doing the best I can, it does seem to me that the costs claimed in the total of £33,316 are on the high side, particularly bearing in mind that some significant part of those costs would have been incurred in putting together a witness statement going into matters which I have held to be irrelevant. Taking account of that and what seems to be in some respects a number of hours and letters and so on on the high side, doing the best I can, the fair sum of costs which I award is in the sum of £22,000.
61. MISS DEHON: Thank you, my Lord.