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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shepway District Council, R (on the application of) v Ashford Borough Council [1998] EWHC Admin 488 (7th May, 1998)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/488.html
Cite as: [1999] PLCR 12, [1998] EWHC Admin 488, [1998] EWHC 488 (Admin)

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ASHFORD BOROUGH COUNCIL EX PARTE SHEPWAY DISTRICT COUNCIL, R v. [1998] EWHC Admin 488 (7th May, 1998)

IN THE HIGH COURT OF JUSTICE CO 397/98

QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST )


Royal Courts of Justice
Strand
London WC2

Thursday, 7th May 1998


B e f o r e:

MR JUSTICE KEENE

- - - - - - -

REGINA

-v-

THE ASHFORD BOROUGH COUNCIL

EX PARTE SHEPWAY DISTRICT COUNCIL
- - - - - -

(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)

- - - - - -

MR W HICKS and MR EDWARDS (instructed by Sharpe Pritchard, London WC1V 6HG, London agents for: Solicitor for the Council of Shepway District Council, Folkestone, Kent CT20 2QY) appeared on behalf of the Applicant.

MR M SPENCE QC and MR I PORTER (instructed by the Borough Solicitor & Secretary, Ashford Borough Council, Ashford TN23 1PL) appeared on behalf of the Respondents.

MR M FITZGERALD QC and MR T STRAKER QC (instructed by Berwin Leighton, London EC4R 9HA) appeared on behalf of the Interested Parties, BAA McArthur/Glen and John Laing.

J U D G M E N T
(As approved by the Court)
(Crown Copyright)

Thursday, 7th May 1998 .

1. MR JUSTICE KEENE: This is an application by Shepway District Council seeking to quash a resolution by a neighbouring Local Planning Authority, Ashford Borough Council, made on 10th December 1997 to approve certain reserved matters and to discharge certain conditions, all in respect of an outline planning permission granted by Ashford Borough Council ("Ashford") on 5th May 1994. Shepway District Council ("Shepway") also seeks to quash the grant of approval for those reserved matters.


2. The outline permission was granted in 1994 as a result of an application made by London and Edinburgh Trust Plc dated 15th July 1991. As the interpretation of this permission is of some importance in this case, it is necessary to set out what appears on the document (the outline planning permission) dated 5th May 1994. The permission had a number of formal parts at the beginning of the first page. It indicated that it was a notification of a grant of outline planning permission. It then gave the name and address of the Applicant and the agent acting for it, described as "Correspondent". At the top right of that page appears the date and reference number on the application, and then the date of the decision. Under the heading "Description and

3. Location of Application" there appears the following:


"PROPOSED RETAIL PARK TO COMPRISE FOOD STORE, NON-FOOD STORE, GARDEN CENTRE, RESTAURANTS, PETROL FILLING STATION, CAR PARK, SERVICE AREAS AND ASSOCIATED HIGHWAY WORKS."

4. Then on a separate line, it states:


"FORMER KIMBERLEY WORKS ASHFORD (TR 014 413)."

5. After a gap come the words:


"PERMISSION GRANTED, subject to the following conditions ..."

6. A number conditions were, indeed, attached to the permission, including the two standard ones to be expected on an outline permission. Those were, first, Condition 01:


"Approval of the details of the siting, design and external appearance of the building(s), means of access thereto and the landscaping of the site (hereafter called 'the Reserved Matters') shall be obtained from the Local Planning authority before development commences."

7. That is in accordance with what is now Article 3(1) of the Town and Country Planning (General Development Procedure) Order 1995 and the definition of "reserved matters" in Article 1(1) of the same Order.


8. Then Condition 02 provided:


"(a) Application for approval of the Reserved Matters shall be made to the Local Planning Authority not later than the expiration of 3 years from the date of this Permission.

(b) The development hereby permitted shall be begun either not later than the expiration of 5 years from the date of this Permission or before the expiration of 2 years from the date of approval of the last of the reserved matters to be approved whichever is the later."

9. That condition is required by section 92(2) of the Town and Country Planning Act 1990 ("the 1990 Act"). Condition 04 on the outline permission states:


"Notwithstanding the provision of the Town and Country Planning General Development Order 1988 or any other order revoking or re-enacting that Order, no new additional floorspace shall be created inside the buildings approved without the prior written consent of the Local Planning Authority."

10. The next condition to which it is necessary to refer is Condition 08 on the permission. That states:


"The premises/site shall not be used for any purpose other than that specifically applied for, whether or not in the same use class of the Schedule to the Town and Country Planning (Use Classes) Order 1987."

11. In all, there are 31 conditions appearing on the permission.


12. After the conditions have been completed and the reasons for those conditions set out, there follows a number of statements headed "INFORMATIVES/AMENDMENTS". Most of these are clearly of an advisory nature and general in form, incapable of any enforcement. Thus, numbers 02, 03, and 04 read as follows:


"02 The details submitted pursuant to Condition 01 of this permission should indicate a particularly high standard of design for the proposed development.

03 The applicant is advised to contact the Borough Health and Leisure Services Officer regarding the application of relevant health and safety at work legislation.

04 the applicant is advised to note the provision of the Environmental Protection Act 1990 Part III with regard to noise."

13. The first item, however, in this list of Informatives/Amendments states:


"As amended by letter of the 17th August 1992 and the accompanying Environmental Statement and Plans attached and letters of the 25th and 30th September 1992."

14. Nothing there expressly indicates what this applies to in the sense of what is "amended" by those documents referred to. That is, for present purposes, a sufficient description of the outline permission of 5th May 1994.


15. The application of 15th July 1991 which led to that permission had described the proposed development in somewhat similar terms to those set out in the permission. It referred to the development as:


"ASHFORD MEADOWS RETAIL PARK TO COMPRISE OF FOOD STORE, NON-FOOD STORES, GARDEN CENTRE, RESTAURANTS, PETROL FILLING STATION, CAR PARK, SERVICE AREAS AND ASSOCIATED HIGHWAY WORKS AND DIVERSION OF THE AYLESFORD STREAM."

16. Apart from the reference to that stream diversion, the only noticeable difference between the descriptions in the permission and in the application is that the permission referred to "non-food store" in the singular. The application was said to be in outline and reserved for future consideration the external appearance, siting, landscaping and design. A site plan was submitted, as was an illustrative layout plan and an illustrative master plan, both the latter being expressly described as illustrative. A supporting statement and a traffic impact statement were also submitted with the application. The supporting statement expressly said that it did not form part of the application.


17. The site in question is located in the southeast part of the town of Ashford in Kent and was formerly occupied by British Rail. It covers just over 14 hectares, about 35 acres. The illustrative material submitted with the application indicated that what was contemplated at that time was some 26,000 square metres gross floor space, including a food superstore of 5,575 square metres gross and non-food retailing of 15,580 square metres gross in total, in the form of a number of units ranging generally from 900 square metres to 3,350 square metres. The supporting statement stressed that the type of units proposed would be single storey and with no unit less than 500 square metres gross. The development would thus be catering for the type of retail trading which required units of substantial size in order to operate efficiently. This, it was said, was very different from the type of retailing catered for by Ashford Town Centre, whose vitality and viability was unlikely to be discernibly affected.


18. On 17th August 1992, sometime before the grant of the permission, those acting for London and Edingburgh Trust wrote to Ashford, enclosing copies of an Environmental Statement for the site "... as part of the planning application submission". That statement was a lengthy document dealing with a range of matters, such as an assessment of the visual impact of the proposed development, the effect on flooding in the area, noise effects and the like. It began by stating that it had been prepared to "... accompany an outline application submitted to Ashford Borough Council...". Within the Environmental Statement was included a letter dated 12th August 1992, setting out the agreement of the then Applicants to certain matters, as a result of discussions which had taken place. It stated, inter alia , that they agreed to a limit on the total floor space to be let in units of 5,000 square feet and to no unit being below 5,000 square feet. There was also a list of types of traders which the Applicants wished to see included in the permission, including DIY, furniture, carpets, shoes and a number of others generally associated with edge of or out of town trading at that time. I note that the letter of 12th August 1992 was not amongst those expressly referred to in the Informative/Amendment No 1 on the eventual outline permission. However, it was mentioned in one of the letters which was so referred to, that of 25th September 1992. That letter referred to a recent meeting and confirmed agreement on similar kinds of restrictions as had been set out in the earlier letter of 12th August of that year. The remaining letter referred to in that Informative/Amendment, one dated 30th September 1992, is of no significance for present purposes.


19. After these lengthy discussions and consultations the application was reported to the committee by the Ashford Borough Planning Officer on 7th October 1992. The report dealt, amongst other things, with advice given to the Borough Council by its own retail consultants which indicated that unrestricted non-food retailing would have an unacceptable effect on the town centre. Consequently, the report stated that certain restrictions were proposed as to the maximum amount of floor space which could be devoted to particular types of retailing and as to the minimum size of units along the lines already referred to. Those restrictions were set out in paragraph 4.17(a) to (h) of that report. At the end of it, the Planning Officer recommended that permission be granted, subject to certain pre-conditions. One of those was that there should be a section 106 agreement covering the restrictions set out in paragraph 4.17, (a) to (h), of the report.


20. The members accepted that recommendation. Eventually a section 106 agreement was concluded on 5th May 1994. It duly included the various restrictions. The outline permission was issued on the same day. It has not so far been implemented.


21. Since that date the intentions of the developers for this site have changed, largely, it is said, because of changing retail conditions. What they now wish to carry out is a retail development in which the non-food element would take the form of a factory outlet centre, that is to say units selling a full range of non-food goods, including clothes and other fashion goods. The average size of the units proposed would not exceed about 400 square metres, that is to say about 4,300 square feet.


22. In September 1996 two applications for permission for such a development of the site were submitted to Ashford, but they were called in by the Secretary of State for his own determination. A public inquiry was arranged for February 1998, but because of the decision by Ashford to grant the approval of reserved matters, which is under challenge in these proceedings, that inquiry has been cancelled and the called-in applications have been withdrawn.


23. In October 1997 the section 106 agreement was varied by agreement between Ashford and the developers of the site in a way which would allow the presently proposed form of a factory outlet centre. There then followed, on 30th October 1997, an application by the developers for the approval of reserved matters under Condition 01 of the 1994 outline permission. It was, in essence, for the factory outlet centre as already described. It was this which Ashford resolved to approve on 10th December 1997. It would in the non-food part produce somewhere between 80 and 120 units, selling in many cases clothing. Shepway is concerned about this because of the effect which they envisage this would have on a new town centre development being planned for Folkestone within their district, a town which is about 20 minutes drive time from Ashford.


24. The issue which now arises is whether what Ashford have purported to approve as reserved matters under the authority of the 1994 outline planning permission falls within the scope of that permission so as to be permitted by it. The issue can be put in those terms since it is well established that an application for approval of reserved matters must be within the ambit of the outline permission: see R v Hammersmith and Fulham London Borough Council, ex parte GLC (1985) 51 P&CR 120, applying Heron Corporation Limited v Manchester City Council [1978] 1 WLR 937.


25. The issue may in fact be even narrower than I have just put it. Mr Hicks QC for Shepway submits that Ashford wrongly interpreted the development permitted by the outline permission. His case is that if one is entitled to look at the documentary material referred to in Informative/Amendment No 1 in order to interpret the permission, then the recently submitted reserved matters fall outside the scope of the permission. But he concedes that if the court is not entitled to do that, then he cannot succeed. It is indeed accepted on all sides that the present proposals do not accord with the detailed characteristics contained in those documents, especially the letters of 17th August 1992 and 25th September 1992, and that if they are to be used to construe the 1994 outline permission, then the present proposals fall outside the ambit of that permission.


26. In essence, therefore, the issue becomes whether the development permitted by that permission was limited by the restrictions contained within those additional documents. If it was not, then it matters not that the present retail proposals are described as a "factory outlet centre". It is the substance of the proposals rather than the label attached to them which matters.


27. The legal principles applicable to the use of other documents to construe a planning permission are not really in dispute in these proceedings. It is nonetheless necessary to summarise them:


1. The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions: see Slough Borough Council v Secretary of State for the Environment (1995) JPL 1128, and Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196.

2. This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application: see Slough Borough Council v Secretary of State ( ante); Wilson v West Sussex County Council [1963] 2 QB 764; and Slough Estates Limited v Slough Borough Council [1971] AC 958.

3. For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as "... in accordance with the plans and application ..." or "... on the terms of the application ...", and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted: See Wilson ( ante); Slough Borough Council v Secretary of State for the Environment ( ante).

4. If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity: see Staffordshire Moorlands District Council v Cartwright (1992) JPL 138 at 139; Slough Estates Limited v Slough Borough Council ( ante); Creighton Estates Limited v London County Council (1958) The Times, 20th March 1958.

5. If a planning permission is challenged on the ground of absence of authority or mistake, it is permissible to look at extrinsic evidence to resolve that issue: see Slough Borough Council v Secretary of State ( ante); Co-operative Retail Services v Taff-Ely Borough Council (1979) 39 P&CR 223 affirmed (1981) 42 P&CR 1.

28. Mr Hicks, in applying those principles to the present case, advances two arguments. His main submission is that Condition 08 on the permission incorporates the application within the permission, since it imposes a restriction on the use of the premises or site or any purpose "... other than that specifically applied for whether or not in the same use class".


29. That requires one, it is said, to look at the application to discover what was specifically applied for, the description given on the face of the permission itself being too general. Consequently the wording of this condition tells any reasonable reader that the application forms part of the permission. Once one gets to that stage, then one has, it is submitted, to deal with the application in the condition in which it was, not originally, but as at the date of the permission, reflecting amendments made in the course of negotiation. Informative/Amendment No 1 shows that the application was amended a number of times, and one has to look at the various documents there referred to, namely the letters and the Environmental Statement to ascertain the final state of the application.


30. On behalf of Ashford, Mr Spence QC responds to this main argument by making two points. First, he contends that Condition 08 does not contain words of incorporation. What was "specifically applied for" is indicated by the description of the development set out in the main body of the permission. This condition is a standard one which Ashford regularly imposes and, as can be seen from its wording, its purpose is to exclude the operation of the Use Classes Order, no more. Secondly, even if Condition 08 were to be taken to incorporate the application, it would only incorporate the application itself and not the supporting material which, as had expressly been stated, did not form part of the application. Mr Spence submits that the letters referred to in Informative/Amendment No.1 merely amended the supporting material and not the application itself. That is clear, it is said, from the nature of the Environmental Statement and from other references in the documentation.


31. Mr Fitzgerald QC, for the owners and developers, supports these arguments. He contends that the development described in the main part of the permission was not a general A1 retail use but one in which a number of specific elements were indeed identified. The planning authority could have chosen to impose a condition on the permission, restricting the retail uses to particular trades and to particular sizes of units but it had not done so. Instead, it had chosen to use a section 106 agreement to impose such restrictions. That, for present purposes, adequately sets out the rival arguments.


32. Shepway's argument on this aspect of the case turns, as Mr Hicks concedes, on the effect of Condition 08. Whatever may be the proper meaning of Informative/Amendment No.1, that item does not in any sense seek to incorporate the application in the permission. It may indicate some amendment to the application (and I shall come to that aspect in due course), but it is on the existence and meaning of Condition 08 that Shepway's main case depends. The question is whether, by its use of the words "... other than that specifically applied for...", Condition 08 is making the planning application part of the permission.


33. That, in my view, is not a question which can be resolved by investigating whether or not this is a standard condition used by Ashford. That in itself would mean a resort to extrinsic evidence, which would not be appropriate in the case of a public document of this kind as a general rule. One has to look at the wording of the permission, to see if it has made the application part of the permission.


34. As a matter of principle, if the words in Condition 08 can be understood from the permission itself and can have a sensible meaning attached to them without a need to resort to the application, then no such resort should be permissible. If, therefore, the permission did not indicate what development had been specifically applied for, then it would become both necessary and permissible to have regard to the application. However, one notes that the way in which this Planning Authority chooses to frame its planning permissions is to set out near the beginning of the document a "description and location of application", expressly stated to be such. It is clear that then embraces a description of the application. The content of the application is described immediately before the words indicating that permission has been granted. The application is described as being one for "proposed retail park to comprise food store, non-food store, garden centre, restaurants, petrol filling stations, car parks, service areas and associated highway works". Those uses can be seen as specific ones, certainly in the context of the Use Classes Order 1987 referred to in Condition 08. Thus, the condition would preclude various uses set out in Class A1 of that Order other than food and non-food retailing.


35. Consequently the reasonable reader of this permission is told what the uses specifically applied for were, simply by reading the permission as a whole and without any need to refer to the application itself. I conclude that Condition 08 does not make the application part of the permission.


36. Even if this were not so, it does not seem to me that the other crucial limb of Mr Hicks's main argument is made out, namely that the various documents referred to in Informative/ Amendment No 1 are to be taken as amending the operative part of the planning application as opposed to the supporting material which had been submitted with it. There are several reasons why that second limb is an unsound one.


37. First, the wording of that Informative/Amendment takes one, first of all, to the letter of 17th August 1992, which submitted the Environmental Statement as part of the "planning application submission" (my emphasis). That final word is important, tending to suggest that the Environmental Statement was not part of the formal application itself. The submission included both the application and the supporting material. In any event, an Environmental Statement is inherently a very unsatisfactory document if it is to be regarded as part of the application itself. It is often lengthy, as this one is, containing many expressions of subjective opinion as to the effects of the proposals, those being statements difficult to regard as being part of the application itself. In addition, this particular Environmental Statement said at the outset that it had been prepared to accompany the planning application, again wording which points to it not being part of the application as such.


38. The letter dated 12th August 1992, not referred to in Informative/Amendment No 1, only forms part of the Environmental Statement and must be seen as having the same status as the Environmental Statement. The later letter dated 25th September 1992 is effectively an amendment to that of 12th August 1992, as is made clear by the reference to the earlier letter in the middle section of paragraph (a). It too must share the same status and be seen as amending the illustrative material.


39. Secondly, it would be strange if those documents formed part of the application itself, bearing in mind that the only way in which, even on Shepway's argument, they could be incorporated in the permission would be by way of reliance on Condition 08. Yet Condition 08 only refers to uses of the premises/site, not to the other matters contained in the correspondence such as minimum size of units. If Shepway's approach were correct, it would mean that some of restrictions from those letters operated but not others. That is not impossible, but it would not produce a very sensible solution.


40. Thirdly, it is to be noted that the planning register, which is the public record of planning decisions and which the Planning Authority is required by statute to keep (see section 69 of the 1990 Act), makes no reference to the application having been amended. It gives the date and reference number of the application and it also states that "... the Applicants have submitted an Environmental Statement...", but there is no suggestion that either by means of that statement or otherwise there had been an amendment of the application itself.


41. In all those circumstances, the documents referred to in Indicative/Amendment No 1 are to be seen as amending the supporting material rather than the planning application itself. If that is so, then the application remained as it was originally submitted. It contained no restrictions on the proposed uses narrower than those to be found on the face of the permission itself. Not only does that mean that Shepway fail to make out the second necessary part of their main argument, but it must also follow that a reference to the planning application would not have achieved any definition of the uses permitted more specific than those set out on the face of the permission. That reinforces the conclusion at which this court has already arrived, namely that Condition 08, by referring to the purposes "... specifically applied for..." did not intend an incorporation of the application. Such incorporation would not have rendered the uses described in the permission any more specific.


42. The other submission made on behalf of the Shepway is that the application can and should be resorted to because the permission is ambiguous. There are a number of strings to Mr Hicks' bow in this part of the case. It is argued that there is ambiguity in the meaning of Condition 08 when one seeks to ascertain the meaning of the words "specifically applied for". I do not agree. For the reasons already set out earlier, the meaning of those words seems sufficiently clear.


43. The phrase "retail park" is then said to be uncertain. However, the answer to that was given by Mr Fitzgerald in the course of argument, namely that the meaning to be attached to those words in this particular case is provided by the permission itself, that is to say, a retail development consisting of various ingredients there described. Mr Hicks also argues that Condition 04, that condition which prevents the creation of additional floor space inside the buildings approved is odd if one does not know the amount of floorspace which has been permitted. But as Mr Spence said, the amount of built floor space will be known at the detailed approval stage and this condition will then bite. There is no ambiguity as to its meaning.


44. Where Mr Hicks does have a valid point on ambiguity is in his reference to the words "non-food store" in the description of the development. He draws attention to the fact that in the register this part of the description appears as "non-food stores" in the plural, thereby creating an inconsistency. That, he submits, can only be resolved by looking at the application which contains the same wording as appears on the register. The Respondents all seem to accept that such recourse to the application may be had for that purpose.


45. The issue, however, is whether such recourse to resolve a particular ambiguity or inconsistency brings the application into play, so as to operate as a means of interpreting and, if appropriate, restricting the permission as a whole. There is no clear authority on this point, though such as there is suggests that that is not the consequence. In the Staffordshire Moorlands District Council case ( ante), Purchas LJ referred to the permission being construed "where ambiguous" in the context of other material: see page 139. In Creighton Estates ( ante) Danckwerts J (as he then was) referred to extrinsic material in order to resolve a specific ambiguity and no more.


46. I propose to deal with this as a matter of principle. It is important to recognise that when an application is being used for such a purpose, it is not being incorporated into the permission. This is a wholly different exercise from that involved in incorporation. The justification for such resort to extraneous material is to resolve a particular inconsistency or ambiguity. That being so, it would not be proper to regard other parts of the permission free from ambiguity as open to re-interpretation in the light of the application or, indeed, other extrinsic material. Such material is only being brought into play for a specific purpose. Such recourse does not make the application or other extrinsic material part of the permission generally. Otherwise the existence of an ambiguity on a single point or word in an otherwise complete and clear permission would mean that the extent of the development as a whole thereby permitted could be cut down by the application. That would be contrary to the general rule spelt out many years ago in Miller-Mead and endorsed by the Court of Appeal recently in Slough Borough Council v Secretary of State for the Environment . Moreover, any such exception to a general rule ought to be narrowly construed.


47. In the present case, Shepway, in any event, would not be assisted by looking at the planning application to resolve this conflict between non-food "store" and "stores". I have already held that the application itself was not amended by the subsequent correspondence or the Environmental Statement. The application does resolve the conflict in favour of the plural word "stores". It does not impose the restrictions which Shepway seek to pray in aid as defining more narrowly the type of retail development permitted. Therefore, even if one could look at the application for a broader purpose than just resolving that conflict about the number of non-food stores, it would in the end not avail Shepway.


48. As a result, it follows that neither of the bases on which this challenge is mounted is a sound one. I fully accept that what was envisaged in 1994 was different from what has been approved recently by way of reserved matters. But the test is whether those matters fall within the ambit of what was permitted, not within the ambit of what was envisaged. What happened in this case was that Ashford chose to embody the restrictions seen as appropriate in 1994, not in conditions on the permission, but in a section 106 agreement. These proceedings perhaps illustrate that controls imposed by means of such an agreement depend for their efficacy and their duration on the attitude of the Local Planning Authority which is a party to the agreement. If the permitted development is described in the planning permission in broad enough terms, the Planning Authority and developer will subsequently have considerable freedom of action to vary the particular form of development from that originally contemplated, and the Secretary of State will have very little ability to intervene, even though the development in question may be a major one.


49. Whether one regards that situation as desirable or not is not a matter for this court, which is only concerned with the interpretation of the 1994 permission. On that latter issue, I conclude that the reserved matters approved by Ashford on 10th December 1997 did fall within the ambit of the outline permission granted on 5th May 1994.


50. In those circumstances, this application for judicial review must be dismissed.


51. MR SPENCE QC: I would ask your Lordship to dismiss the applications and make an Order for costs in favour of the Respondent Borough Council? I believe my learned friend may wish to say something about that.


52. This morning I am instructed also on behalf of BAA McArthur/Glen and John Laing to make an application for costs in respect of them. I do not know whether your Lordship would prefer to hear that application before or after my learned friend has spoken as to the first point?


53. MR JUSTICE KEENE: You mean as to the general liability as to costs? Do you want to say anything on that all, Mr Edwards?


54. MR EDWARDS: Simply, my Lord, I would oppose the application on behalf of BAA McArthur/Glen ----


55. MR JUSTICE KEENE: I think Mr Spence, in that case, would like to develop his argument on their behalf. You do not seek to say that your clients can evade, at any rate, one set of costs?


MR EDWARDS: No, I do not.

MR JUSTICE KEENE: Yes, Mr Spence?

56. MR SPENCE QC: My Lord, first of all, bearing in mind that they are not actually parties -- they were never actually joined as second Respondents because Sedley J said that it would be unnecessary for them to be joined, even though they did apply. That is accepted. My Lord, there is, in my submission, no difficulty caused by that. I do not know whether your Lordship would like me to take that further. It recognises further ----


57. MR JUSTICE KEENE: Not at the moment, unless this particular somewhat technical point is one which forms an important part of Mr Edward's submissions. I am more concerned about the general discretion, bearing in mind what was said, for example, in the House of Lords in the Bolton case.


58. MR SPENCE QC: Bearing in mind that that case was in the House of Lords and this was at first instance, their Lordships in that case did draw a distinction, because by the time it got to the House of Lords or even to the Court of Appeal the issues had crystalised to a far greater extent than they had at the time of first instance.


59. I would make just these points: BAA have a vital commercial interest which has been alluded to more than once during the hearing. That interest is the prospective implementation of the planning permission. The principle subject to attack was the planning permission rather than the details which had been approved. In other words, the Applicant was attacking the consent or the construction of it which inured for the benefit of the land and of BAA McArthur/Glen and John Laing in particular.


60. Accordingly, my Lord, in our submission the Applicants can be taken to have accepted the risk that they would be a party represented in this court with a commercial interest, concerned to fight any narrow construction of the planning permission. That is the first main point.


61. My Lord, the second main point of lesser significance is that my learned friend, Mr Fitzgerald, and his junior, Mr Straker, were able to add somewhat to the argument as your Lordship has set out in your Lordship's judgment, including, in particular, the part of the argument addressed to the Use Classes Order. I shall go on in case your Lordship is against me on that first submission for those two reasons.


62. If your Lordship is against me, I respectfully submit that there should be a partial Order, as in fact occurred in the Bolsover case. If we need to look at it, we can. It was necessary for BAA and their advisors to consider the matter and prepare materials, particularly in order to seek expedition. A lot of work was done in order to prepare the affidavit of Mr Whirl (?). No one else could have done it, certainly not Ashford Borough Council, and it was a long task because the Applicant produced a mass of material. It was inevitable that BAA would have to work through all that material.


63. If your Lordship is with me on that more restrictive basis, in order to make taxation reasonably easy, your Lordship might think of allowing BAA, say, 25 per cent of their costs.

64. MR JUSTICE KEENE: When you say BAA, do I take that to include John Laing as well?


65. MR SPENCE QC: Yes, BAA McArthur/Glen and John Laing.


66. MR JUSTICE KEENE: For the developers/landowners, as I understand.


67. MR SPENCE QC: They have, as your Lordship will notice, actually saved some costs by their joint representation rather than their separate representation in the Bolsover case, actually.


68. MR EDWARDS: My Lord, I would reflect the comments of the House of Lords with the Bolton case. There is no disrespect to Mr Straker and to Mr Fitzgerald, but, in my submission, their arguments did not advance the matters any further than advanced by Mr Smith. However, may I be allowed one moment to take instructions on one point? My clients will be prepared to concede the point regarding the affidavit. That was the situation which I believed happened in the Bolsover case, because clearly expedition was necessary, amongst others things, but generally I would rely on the approach taken in the Bolton case.


69. MR JUSTICE KEENE: Remind me of the form of the Bolsover case, would you? It is in the black file that I have, I know. The costs does not appear to be reported. My report certainly does not seem to help me on that.


70. MR EDWARDS: I have a copy of the transcript, my Lord. Owen J was concerned to help the Taxing Master.


71. MR JUSTICE KEENE: Quite, I have that in mind as well.


72. MR EDWARDS: It appears that there is no clear indication as to how Owen J phrased the terms of the Order. They should have costs for the preparation of the affidavit going to the issues.


73. MR JUSTICE KEENE: You concede that, Mr Edwards, but I take it that you are not conceding the 25 per cent, which was the basis upon which Mr Spence was doing it, or are you happy to see it done on ----


74. MR EDWARDS: I understood Mr Spence was saying that 25 per cent was, if you like, an estimate of the costs. In which case, I would not oppose that if that was a reliable estimate. I have no reason to suppose it is not.


75. MR JUSTICE KEENE: Do you want to say anything more, Mr Spence?


76. MR SPENCE QC: I need not say anything more, save that the costs at the leave stage were costs in the cause, so I would respectfully ask that the award for costs should be dealt with in the round?


RULING AS REGARDS COSTS

77. MR JUSTICE KEENE: So far as the two points advanced by Mr Spence for there being an Order that Shepway do pay both sets of the Respondents' costs, I am not persuaded by either of those points. Of course, the developer/landowner has a vital commercial interest in this matter and in the construction of the permission. That is almost always the situation when a challenge is mounted by a third party of this kind. While it is always helpful to have counsel of the ability and standing of Mr Fitzgerald and indeed Mr Straker here, it seems to me that the developers did not present a materially different case from that of the planning authority. In those circumstances, I exercise my discretion by concluding that two full sets of costs ought not to be ordered.


78. However, I do accept that some allowance ought to be made for the work that was done in relation to the preparation of evidence by the developers/landowners. It seems to me that the suggestion of an Order to pay 25 per cent of the developers/landowners costs would be appropriate in this case.

79. I, therefore, make an Order that Shepway District Council do pay the costs of the Ashford Borough Council on the usual basis and that they do pay 25 per cent of the costs of BAA McArthur/Glen and also John Laing.


80. MR EDWARDS: My Lord, I have one other matter. I would like to apply for leave to appeal to the Court of Appeal, if I may, on three basis arising out of your Lordship's judgment. First (and I think it was a point to which you alluded in the main hearing), it is the relationship of the Environmental Statement and the information contained within it to the planning application and, indeed, the planning permission. I seem to recall that during the hearing we did refer to problems with regard to Environmental Statements and their status and whether or not they can be, to a certain extent, circumvented in circumstances not dissimilar to this one; also bearing in mind, of course, that this was an Environmental Statement that was specifically requested by Ashford under the Regulations. It may be that clarification on that point could be given by the Court of Appeal.


81. The second is also the point regarding the status of an Informative/Amendment: does it have any status?


82. The third point I can call the ambiguity point. In your Lordship's judgment you made the point that there is not much in the way of case law on the point. In resolving or resorting the applications supporting material, can one simply, as a matter of principle, look at it for one specific purpose or can it be looked at in a wider context? I am mindful of the situation, where one looks at the specific purpose and then discovers something else which is of importance to the application, perhaps, by accident. Can that be disregarded?


83. It is on those three bases that I would ask for leave to appeal.


84. MR JUSTICE KEENE: Mr Spence, do you want to say anything about this?


85. MR SPENCE QC: My Lord, only very briefly. Your Lordship's judgment was, with the very greatest respect, extremely clear on every single point, including on those, as to which I need say nothing about the first point.


86. In respect of the second, the Informative/Amendment will be a point of very localised interest, it being done here at Ashford and it may be done elsewhere. It is a very limited point and so also is the point about the 'S' (?). Your Lordship's judgment is so clear on all of the points, that it is, with great respect, unnecessary for it to be taken from the public's point of view any further.

RULING AS REGARDS LEAVE TO APPEAL

87. MR JUSTICE KEENE: I am not prepared to grant leave to appeal. I will explain very briefly why. First of all, so far as the Environmental Statement is concerned and the problems of its status, it seems to me that in this particular case the status of the document was made clear earlier on in it when it said that it accompanied the application and no more. Therefore, it does not seem to me that this case would resolve any more general issue.


88. So far as the status of Informatives/Amendments are concerned, that does not seem to me to be of general application. The significance of any wording like that is going to turn on the facts of a particular permission. Many local planning authorities in my experience only use informatives rather than whatever Informative/Amendment means. Therefore, I cannot see this as being of any wider significance.


89. On the ambiguity point, while I accept that there is limited authority on this, at the end of the day this would not assist the present Applicant for reasons I hope I have made clear. A resort to the application on the ambiguity point, even if one referred then to the application more widely, would still have left Shepway stuck with the fact that it could have resort only to the original application, because of my conclusion that it was not amended.


90. In those circumstances, it does not seem to me that this is a matter where leave to appeal would be appropriate.


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