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Cite as: [1999] EWHC Admin 575

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HOWARD DAVIES and ANN DAVIES v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS v. BLACK PRINCE HOLIDAYS LIMITED [1999] EWHC Admin 575 (21st June, 1999)


IN THE HIGH COURT OF JUSTICE CO/4492/98
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

Royal Courts of Justice
The Strand

Monday, 21st June 1999


B e f o r e:

MR JUSTICE RICHARDS

- - - - - -


(1) HOWARD DAVIES (2) ANN DAVIES

-v-

THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT
AND THE REGIONS

-and-

BLACK PRINCE HOLIDAYS LIMITED

- - - - - -
Handed-down Transcript of Smith Bernal Reporting Limited,
180 Fleet Street, London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
- - - - - -
MR R McCRACKEN (Instructed by Ollerenshaw, Leaminghton Spa CV32 4LN) appeared on behalf of the Applicant.

MR T MOULD (Instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent.

MR A TREVELYAN THOMAS (Instructed by Birkett Long, Colchester, Essex, CO3 3HH)
appeared on behalf of the Second Respondent.

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

Monday, 21st June 1999

Mr Justice Richards:

1. This is an application under s.288 of the Town and Country Planning Act 1990 challenging a decision to grant planning permission for a canal boat mooring basin (a marina) at Napton Junction, Warwickshire, which is at the junction of the Oxford and Grand Union canals. The decision was dated 7 October 1998 and was made by an inspector appointed by the Secretary of State, allowing an appeal against the local planning authority's refusal of planning permission. The applicants are Mr & Mrs Davies, who are the proprietors of a neighbouring marina and were objectors at the inquiry. The respondents are the Secretary of State and the developers of the proposed marina, Black Prince Holidays Limited.

The inspector's decision

2. The inspector identified two main issues: (1) whether or not the proposal complied with Policy R6 of the Warwickshire Structure Plan and (2) the effect of the proposal on the character and appearance of the Cotswold Scarp Slopes Special Landscape Area. The present application is concerned principally with an aspect of the inspector' s handling of the first issue, though it will be necessary to refer briefly to the inspector's conclusion on the second issue as well.

3. On the first main issue the inspector started by setting out the effect of the relevant policy. She said:

"Policy R6 states that mooring development should generally be related to existing settlements and will not normally be permitted in open countryside. However, development related to canal junctions or long pounds outside existing settlements may be permitted if there is no other means of realising the full potential of the canal network. I note that the Policy contains no methodology for determining which sites should be considered as exceptions to policy" (para 7).

4. She went on to consider whether the proposal would be in conflict with the policy. Having regard to the nature of the challenge, I think it necessary to set out a large part of her consideration of that issue:

"8. The Council has not sought to challenge the need for a marina type mooring in the locality of the appeal site, but it considers that Policy R6 requires prospective developers to demonstrate that they have considered and rejected, for good reasons, other potential development sites associated with the canal network. In terms of the area of search, the Council considered that it would be reasonable to look for potential sites on the Grand Union Canal between Leamington Spa and Braunston Marina to the east and on the Oxford canal north of Banbury to Napton Junction. There was general agreement that it would be reasonable for the proposed marina to be within a journey time of one and a half hours by boat from the canal junction or long pound.

9. For technical and commercial reasons, your client requires a site which is a minimum of 5.5 hectares; is close to the level of the canal; has a regular shape for the efficient layout of boats with safe access; is close to the main road network; has a clay sub-soil and which has no conflict with the lock. In total, your client identified 24 potential sites within the Council’s search area. These were then assessed against the Council’s criteria as well as its own criteria. Except for the fact that the appeal site lies in open countryside, it is otherwise the only site which fulfils both sets of criteria.

10. Your client identified 4 other potential sites which satisfied the main physical criteria for a mooring basin (size, levels, shape and access) and which were on long pounds at an acceptable distance from locks. However, each of them lies in the open countryside and therefore none of them has an advantage over the appeal site. Moreover, sites 20 and 21 were located too far from the junction to offer the necessary variety of trip options; site 12 which adjoins an existing marina at Napton was deemed to be impractical because it was L - shaped; and Site 13 was in close proximity to residential properties and would be likely to attract objection from neighbours.

11. The Council requested that Site 14 ... be the subject of particularly close examination .... [That was then considered in paragraphs 11 to 13.]

....

14. Additionally, you contacted the neighbouring authorities of Daventry District Council, Cherwell District Council, and Warwick District Council and no further sites were identified. In my judgement, your client has carried out a systematic and diligent search for a suitable site within the search area identified by the Council. Moreover, the Council has not been able to suggest a satisfactory alternative. I am therefore satisfied that there is no other means of realising the full potential of the canal network and that therefore the proposal would not be in conflict with Policy R6."

5. In relation to the second main issue the inspector concluded that there would be no conflict with policy, finding amongst other things that "these proposals would conserve and restore the pastoral hedged character of the landscape in accordance with the Landscape Guidelines" (para 21), that the marina would be prominent but "its appearance would not be inconsistent with the adjoining canal activities which are also a significant feature of the area, and a considerable tourist attraction" (para 22), and that "the operation of the marina is not by itself a noisy activity" (ibid.).

6. The inspector then expressed her overall conclusion as follows:

"23. My overall conclusion is that first, whilst the proposed mooring basin would lie outside the existing settlement of Napton, I am satisfied that there would be no other means of realising the full potential of the canal network. Secondly, the proposal would not cause any material harm to the character and appearance of the Cotswold Scarp Slopes Special Landscape Area. Consequently the proposal would not be in conflict with the development plan.

After making observations in the next paragraph about the proposed conditions, she concluded by a general reference to other issues raised:
"25. I have considered all other matters raised in this appeal including the problems of water supply and the capability of the canal system to cope with the additional boat traffic and the potential congestion problems which would result therefrom. However, I have accorded considerable weight to the views of British Waterways on these matters as they have the statutory duty of managing the canal system, and they are satisfied that the canal system is able to cope with the additional traffic. Therefore I have found nothing to outweigh the considerations leading me to allow this appeal.

Accordingly she allowed the appeal and granted planning permission for the mooring basin subject to conditions.
The applicants' case
The challenge to the inspector's decision arises out of a narrow area of dispute at the inquiry. The proposed marina was 5.5 hectares in size, with 197 berths. The gist of the case for the developers was that a smaller marina would not be commercially viable. Mr Parker, the Chairman and Managing Director of the developers, stated in his written proof of evidence to the inquiry:
"The advice of British waterways, British Marine Industry Federation, Yacht Harbour Association and others was canvassed to ascertain the optimum size of a marina. The general view was that a mooring basin with 200 berths would be commercially viable. Anything smaller would, however, have to be supported by land-based facilities such as boat repairs or boat building which produce noise, fumes and other disturbance. As this would be incompatible with the aim to provide a high quality facility in serene and picturesque surroundings attractive to private boat owners it was decided to opt for a larger number of boats (197 berths of which 179 would be for private boat owners) to provide the necessary income to make the proposal workable."

7. Mr Davies says that he challenged the proposition that a marina with fewer than 200 berths could be commercially viable only if supported by land based facilities or boat building. It was the first point he put to the inquiry when he himself gave evidence. His evidence was that 200 berths might provide maximum profitability but that smaller sites were still viable without supporting land based activity. He gave to the inquiry two examples of commercially viable marinas of 100 berths without supporting land based activity. It is fair to say that there is no record of what precisely he told the inquiry, but on the material before me I accept that he did draw the inspector's attention to two examples. One of them was the applicants' own 100-berth marina, Napton Marina. The other was a proposed 100-berth marina at Ventnor Farm, which was the subject of a planning application at the time of the inquiry but for which planning permission has subsequently been granted.

8. The applicants' submissions to this court are that (1) the inspector failed to take into account their case that the minimum requirements for a commercially viable marina were lower than those put forward by the developers, and/or (2) she failed to give adequate reasons in relation to this issue.

9. In relation to the first point, it is submitted that no reference is made to the applicants' evidence or submissions on the first main issue. The inspector refers in paragraph 8 of the decision letter to the council's position and seems thereafter to deal with the debate between the council and the developers. Paragraph 9 touches on the key issue ("For technical and commercial reasons, your client requires a site which is a minimum of 5.5 hectares ....") but expresses it in terms that give no indication of the existence of a dispute over it and do not even show whether she accepted the validity of the developers' requirement. The only mention of any matters raised by the applicants is in paragraph 25, which, it is submitted, looks like an after-thought and supports the view that the applicants' case on the main issue was not taken into account.

10. The consequence of the inspector's error of approach is said to have been a failure to apply her mind to whether sites of less than 5.5 hectares in size might have been realistic alternatives to the subject site at Napton Junction. The developers' investigation of potential sites had resulted in a list of 23 other sites, 6 of which were smaller than 5.5 hectares. They included the Ventor Farm site referred to by the applicant in his evidence to the inspector. That site, for which planning permission was subsequently granted, might have been regarded with favour by the inspector had she applied her mind to smaller sites. More generally, although all 6 of the smaller sites were in countryside locations, the inspector might have concluded that the siting of a marina in one of those sites would have a lesser effect on the countryside than the proposed development. (A submission that at least one of the other sites was, unlike the subject site, outside a special landscape area was based on an inference from the documents that I am unwilling to draw. I therefore leave that point to one side, though it would not in any event affect my decision.) The inspector might also have questioned the adequacy of investigation carried out into potential smaller sites. Accordingly, the failure to take into account the applicants' case as to the minimum requirements for a commercially viable marina vitiated the decision in a way that should cause it to be quashed; and, in the event of the court accepting the applicants' case on this first point, it would be wrong for the court to withhold relief in the exercise of its discretion

11. The failure to give adequate reasons is a separate head of submission though closely related to the first point. At the very least, it is contended, the inspector should have shown that she appreciated the existence of an issue over the minimum size requirement and should have expressed a conclusion on it. In the course of argument before me different descriptions were given to the issue, ranging from "significant" to "important" and "major". The essence of the submission, however, was that this was an issue that should have been dealt with in the decision letter. The failure to deal with it left the applicants in the dark as to the inspector's approach to the issue and caused them prejudice. This also feeds back into the first point, in that it is submitted that in the absence of any reference to the point the court could and should infer that it was not taken into account.


The respondents' submissions

12. On behalf of the Secretary of State it is accepted that the inspector had to take into account the applicants' contention that smaller sites were realistic contenders and in that context to consider the evidential dispute as to the viability of smaller marinas. Although the inspector did not deal with them expressly, it is submitted that the proper inference to be drawn from the decision letter as a whole is that she did take those matters into account and that she resolved the evidential dispute against the applicants and in favour of the developers. That is to be inferred, in particular, from the discussion of the first main issue at paragraphs 7 to 14. In those paragraphs the whole thrust of the inspector's assessment was directed to whether, in terms of the second limb of Policy R6, there were other means of realising the full potential of the canal network. Her conclusion that there were no other such means was based on her acceptance of the exercise carried out by the developers. As part of that she accepted the developers' case that for technical and commercial reasons a minimum size of 5.5 ha. was required. Her reasons were stated in sufficient detail to enable the reader (i.e. the informed parties to the appeal before her) to know what conclusion she had reached on the issue.

13. It is submitted that the court should in any event exercise its discretion against quashing the decision, on the ground that there is no realistic possibility of the inspector having reached a different conclusion even if smaller sites had been commercially viable. All of the smaller sites were in open countryside and therefore had no advantage over the subject site in terms of Policy R6. There was no additional objection to the subject site based on its location in a special landscape area, since the inspector had found the site to be compatible with the relevant policies in that respect. Moreover only two of the other sites were located at a junction or long pound as required by the second limb of Policy R6, and both of those failed to meet the requisite physical criteria even apart from the question of size. No other possible site beyond those identified by the developers has been suggested by the applicants.

14. The Secretary of State's submissions are adopted by the second respondents, the developers. They also take an alternative point on the effect of Policy R6. The submission is that, so far as the first limb of the policy is concerned, no site "related to existing settlements" has been ruled out on grounds of size. The developers, in their evidence to the inquiry, did not identify a potential smaller site related to an existing settlement and none has been suggested by the applicants. In those circumstances, and given the absence of objection on landscape grounds to the subject site, there is simply no room for comparison between the subject site and other smaller sites. One is concerned only with the second limb of the policy. In that limb the reference to "other means of realising the full potential of the canal network" is a general reference to other means and is not a reference to other sites. It is not intended to involve a comparison between different sites each of which is in open countryside and related to a canal junction or long pound. Accordingly the issue as to size was irrelevant to the result and the inspector was not required to reach a conclusion on it.


Legal principles

15. I do not think it necessary to rehearse at any length the legal principles relevant to my assessment of the case. I remind myself of what is said in Save Britain's Heritage v. Number 1 Poultry Limited [1991] 1 WLR 153 about the need to construe decision letters as a whole and with a measure of benevolence, as to the requirement that the reasons should be proper, intelligible and adequate, and as to the circumstances in which a deficiency of reasons may cause substantial prejudice (as e.g. where they are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act).

16. All parties have drawn my attention to Bolton Metropolitan DC v. Secretary of State for the Environment (1995) 71 P&CR 309 at 313-315, where Lord Lloyd states inter alia:

"What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the 'principal controversial issues'. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."

17. To deal with a suggestion that seemed on occasion to surface in the applicants' submissions, I do not accept that the second sentence entails that reference must be made to everything that is significant or non-peripheral. That would be to place an unjustified gloss on the operative statement of principle in the first sentence. In this connection I should also mention Secretary of State for the Environment v. MJT Securities (1997) 75 P&CR 188, to which my attention has also been drawn. Suffice it to say that in my view nothing in that case purports to qualify the Bolton principles or to apply them in a way that has any particular bearing upon the present case.

18. I also note what Lord Lloyd said in Bolton (at the top of page 315) to the effect that, since there is no obligation to refer to every material consideration, but only the main issues in dispute, the scope for drawing any inference (i.e. that the decision-maker lacked a rational reason for the decision or has not fully understood the materiality of a matter to the decision) will necessarily be limited to the main issues, and then only when all other known facts and circumstances appear to point overwhelmingly to a different decision.


Conclusions

19. After careful consideration of the decision letter I reject the applicants' submission that the inspector failed to take into account their case as to the minimum size of a commercially viable marina. I prefer the analysis of the decision letter that is put forward on behalf of the Secretary of State.

20. In considering the first main issue identified in the decision letter, the inspector focused on the question whether there would be other means of realising the full potential of the canal network. That question was a central one, since the subject site did not fall within the first limb of Policy R6 (not being related to an existing settlement but being in open countryside) but did otherwise fall within the second limb of the policy (being related to a canal junction). In order to answer it, she examined the developers' assessment of other potential sites. That assessment included smaller sites as well as those at or above the minimum size that the developers said was required. It analysed the sites by reference to a number of criteria, including physical criteria and other factors as well as size. In my view the inspector's examination of that assessment necessarily included consideration of the appropriateness of the criteria themselves. If she had not considered the criteria to be appropriate, she could not have expressed herself as she did in paragraph 14, where she referred to the developers "systematic and diligent search for a suitable site" and recorded that she was satisfied that there were no other means of realising the full potential of the canal network. She must in my view have accepted the validity of the requirement of a 5.5 hectare site and of the technical and commercial reasons put forward in support (as referred to at the beginning of paragraph 9). Although there is no express acceptance of those matters, the proper inference is that she did accept them. It follows that she must have rejected the applicants' case that a smaller marina would have been commercially viable. That was a matter of judgment for her and her decision on the issue is unassailable.

21. Thus the contention that the inspector did not even have the applicants' case in mind is in my view unsustainable. In the light of the matters to which I have referred, a failure to take it into account cannot be inferred from the failure to make express reference to it when considering the main issue, whether that point is looked at alone or together with other points made by reference to the structure of the decision letter (including the fact that the only paragraph referring specifically to matters raised by the applicants is paragraph 25).

22. Given that the inspector proceeded by looking at potential alternative sites as a means of answering the question whether there would be other means of realising the full potential of the canal network, there seems to me to be an air of unreality about the developers' alternative submission that, within the framework of the second limb of Policy R6, there was no room for comparison with other sites and therefore no need to express a conclusion on this issue; and I would not uphold the inspector's decision on this alternative basis.

23. As to the adequacy of the inspector's reasons, in my view it was not necessary for the inspector to deal in terms with the evidential dispute as to the commercial viability of smaller marinas. It was a material consideration, having been raised in Mr Davies's evidence - though not in any great detail, as it would seem from the information available to this court. I accept that an issue may be important even though dealt with briefly. I also acknowledge that Mr Davies had expert knowledge about marinas that the council may have lacked. But looking at it in the context of the case as a whole, I do not think that Mr Davies's evidence elevated this into one of the principal controversial issues calling for separate treatment. In any event, on my preferred construction of the decision letter as set out above, the inspector's reasons were sufficient to enable the applicants to know what conclusion the inspector had reached on the issue. I do not think that there was any deficiency of reasons, let alone a deficiency causing substantial prejudice to the applicants.

24. I understand that the applicants, as owners of a competing marina who participated actively in the inquiry, may feel aggrieved that the inspector did not deal in terms with an issue to which they themselves attached considerable importance. My task, however, is to decide whether the inspector's decision complied with the minimum standards imposed by the law; and for the reasons I have given, I conclude that it did.

25. In the circumstances I can deal briefly with the issue of discretion, which does not strictly arise on the findings I have made. If I had concluded that the inspector failed to take into account the applicants' case as to the minimum size for a commercially viable marina, I would still not have been minded to quash the decision. I do not consider there to have been a realistic possibility of the inspector reaching a different decision as to the grant of permission even if smaller sites had been commercially viable. I accept the submissions put forward on behalf of the Secretary of State. I also note the inspector's observation, at paragraph 10 of the decision letter, that each of the four other potential sites satisfying the developers' main physical criteria lies in the open countryside "and therefore none of them has an advantage over the appeal site" (emphasis added). I do not see why the same reasoning should not have applied to smaller sites lying in the open countryside. The speculative suggestion that one of the identified smaller sites might have had appreciably less effect on the open countryside, or that another smaller site might have been found if further investigation had been carried out, does not seem to me to be supported by the evidence or to have sufficient weight to justify the view that a different conclusion might have been reached. There is a high threshold before the court will exercise its discretion not to quash a decision that it has found to be unlawful, but the facts of the present case would in my view have reached that threshold.

26. For the reasons given the application is dismissed.

27. MR JUSTICE RICHARDS: I am handing down the judgment in this case. For the reasons given in that judgment the challenge to the grant of planning permission by an inspector appointed by the Secretary of State is dismissed.


28. MR MOULD: My Lord, that being so, I apply for the application to be dismissed with the first Respondent's costs. In accordance with the practice set out of Part 4 of the Procedure Rules, I invite your Lordship to assess my clients' costs in the event that he is minded to make that order. In accordance with the Practice Direction, a Schedule of those costs, which I invite your Lordship to include within that assessment, has been served upon the court and indeed upon the other parties.


29. MR JUSTICE RICHARDS: This is the Schedule dated 9th June?


30. MR MOULD: No, there is an updated version which is dated the 17th. That essentially has been updated to cover the costs of today's hearing, as I understand it. It has been dealt with in accordance with the requirements setting out the fee earners, the grades and the various matters in relation to which costs had been occurred. The grand total is set out on the second page as £5,447.72. There is a declaration made by the Treasury Solicitor which is made by reference to that which could have been recoverable on detailed assessment. That is the amount of the money that I seek.


31. MR TREVELYAN THOMAS: My Lord, I too have an application for costs on behalf of the second Respondent. We too have filed two statements with the court and on the Applicant. The first relates to the costs incurred up to the date of the hearing last week, and the second deals with the additional attendance to come here today. Does your Lordship have that?


MR JUSTICE RICHARDS: Yes, I do.

32. MR TREVELYAN THOMAS: Again, they are set out in what I hope is the appropriate form. Mr McCracken has been good enough to indicate that he opposes our costs (that is the second Respondent) on the matter of principle. Can I take you to the Bolton case? Can I invite you to come to the third page, page 1178, just by, I think, letter F:


"What then is the proper approach? As in all questions to do with costs, the fundamental rule is that there are no rules. Costs are always in the discretion of the court, and a practice, however widespread and longstanding, must never be allowed to harden into a rule. But the following propositions may be supported."

33. MR JUSTICE RICHARDS: It is number (2): "...likely to be a separate issue..."; is it not?


34. MR TREVELYAN THOMAS: That is right. I draw your Lordship's attention to number (3), the first sentence:


"A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have been crystalised ..."

35. I make four separate points. Firstly, we filed the evidence in response to the application which plainly, in my submission, was important material which was needed to deal with the Applicants' appeal, and, in my submission, we should plainly be entitled to those costs. If your Lordship would come to the first set of costs, the final page apportioned costs between the affidavits and the hearing. Your Lordship will see the figure of £1,431 for the affidavit and £6,396 for the balance.


MR JUSTICE RICHARDS: Sorry, this is----

36. MR TREVELYAN THOMAS: The third page of -----


37. MR JUSTICE RICHARDS: If you are referring to your Statement of Costs, the first document, one for the hearing for 10th June is two pages and the second one, the addendum, is two pages.


38. MR TREVELYAN THOMAS: I did not realise that. Can I, please, pass it to you. It was something that I specifically asked to be done and it looks as though it was only supplied to me.


39. MR McCRACKEN: I wonder if I can have a copy as well, because I think I am quite interested in this.


40. MR TREVELYAN THOMAS: That is the only copy. My Lord, in any event in my submission --


41. MR JUSTICE RICHARDS: Perhaps you had better wait until Mr McCracken has had a chance to study it.


42. MR TREVELYAN THOMAS: In any event, in my submission the second Respondent should be entitled to that element of his costs. Beyond that, in my submission, it was right in the circumstances of this case that he was represented before you. The developer had filed the evidence upon which the challenge was successfully defended. One does not know what might have turned upon the details of the affidavit which Mr Parker sworn. There was, in my submission, a case which depended in part upon what was said or was not said or what material was or was not before the Planning Inquiry, a matter which the second Respondent was appropriate to deal with.


43. Thirdly, my Lord, in my submission, the developer does have an interest to be protected separate to that of the first Respondent, because he, of course, had secured a valuable planning permission which he was anxious to protect.


44. Fourthly, although we supported the Secretary of State and did not repeat a word of what he said, separate submissions were made on behalf of the second Respondent.


45. MR JUSTICE RICHARDS: It may not be your strongest point, since they were submissions I rejected.


46. MR TREVELYAN THOMAS: I accept that. Those are my submissions.


47. MR McCRACKEN: My Lord, may I first of all acknowledge, of course, that my clients are bound to pay in principle the costs of the first Respondent. May I deal, first of all with the principle of whether or not my clients should have to pay any of the costs of the second Respondent and then deal with the particulars of the first Respondent's application for costs.


48. If one looks at what the House of Lords said in Bolton, the principle is very clear. Lord Lloyd of Berwick says, on the page preceding that to which my learned friend referred your Lordship -- It is page 51 in the Planning Law Reports which is the edition that was before the court in the main hearing. It is in the second paragraph of Lord Lloyd's speech, where he says:


"... Where there is multiple representation, the losing party will not normally be required to pay more than one set of costs, unless the recovery of further costs is justified in the circumstances of the particular case."

49. So my submission will be that the burden falls clearly and squarely upon the second Respondent. One of the reasons for that is set out in the immediately preceding sentence, where Lord Lloyd said:


"The House will be astute to ensure that unnecessary costs are not incurred."

50. That, of course, accords with a general principle, which is of some public concern at the moment, that the cost of litigation should not be unnecessarily high because the rise in costs by unnecessary duplication or triplication by lawyers each performing the same task.


51. If I can take your Lordship to the second principle set out by Lord Lloyd:


"The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case."

52. My submission would be that in this instance my learned friend is unable to show anymore than he is the developer, which is, as Lord Lloyd explains, "not of itself sufficient to justify a second set of costs".


53. MR JUSTICE RICHARDS: What about the costs of the evidence?


54. MR McCRACKEN: The evidence is something that could have been presented, and indeed would no doubt have been presented, by the Treasury Solicitor had the second Respondent not filed the second Respondent's affidavit.


55. MR JUSTICE RICHARDS: Then the costs would presumably have been higher on the part of the Secretary of State?


56. MR McCRACKEN: No, my Lord, they would not, with the greatest respect, because one of the interesting things about the Secretary of State's costs is that the Secretary of State has -- and if your Lordship turns to the first Respondent's Statement of Costs, the first Respondent claims in respect of counsel fees totalling about £1,750. I do not take issue with those. Those relate to fee for hearing, fee for skeleton argument and fee for advice, so that £1,750. I accept that that is reasonable. That, of course, involved Mr Mould analysing the documents, analysing the issues and preparing the submissions. The question then arises as to the extent to which any other lawyer needed to perform the same task.


57. If one looks on the first page of the first Respondent's Statement of Costs, one sees a really most interesting feature of the case. Looking at the first item, at attendances on client: 6.1 hours at £120, and work done on a document: 1.9 hours at £120, the Treasury Solicitor spent 18 hours working on the documentation and talking about it with the Planning Inspector or whoever represented the Planning Inspector. I have two points to make about that. First of all, it is inconceivable in the 18 hours' deliberations that the Treasury Solicitor spent on the documentation and talking to the Planning Inspectorate that the Treasury Solicitor would not have been able very simply and at minimal extra costs to have sworn an affidavit setting out the necessary documentation. So I reject the submission, or at least I submit that the submission of my learned friend, Mr Trevelyan Thomas, that he is entitled to at least the costs of the affidavits is misconceived because that would involve, at the very least, duplication between the Treasury Solicitor and his Clerk.


58. MR JUSTICE RICHARDS: And you say that he did not need to be at the hearing, that there was not likely to be a separate issue and presumably you also say, that, insofar as he did advance separate submissions, they did not succeed.


59. MR McCRACKEN: My Lord, that is right. For the benefit of your Lordship's note I would refer to the Civil Procedure Rules, 44.3(4)(b) which specifically indicates that the court must have regard to that factor. So I submit that it would be wrong in principle for the second Respondent to have any costs in this case. So far as the particulars of the Treasury Solicitor's costs are concerned, I have already indicated that I accept that Mr Mould's fees are reasonable. While I think it must have been reasonable for the Treasury Solicitor, to a limited extent, to seek cast to her mind around the documentation and the issues, there is in the claim that is put forward by the Treasury Solicitor an element of duplication which the court should be astute to avoid.


60. MR JUSTICE RICHARDS: It is duplication that arises if I make an award in relation to both Respondents.


61. MR McCRACKEN: My Lord, it is triplication if your Lordship makes an award in favour of the second Respondent, because ----


62. MR JUSTICE RICHARDS: How it is duplication, if it is simply an award in favour of the Secretary of State?


63. MR McCRACKEN: I accept that the first Respondent must, of course, have some time to look at the documents. I do not dispute that for the moment, but my point, and can I put it simply as this: it is wrong in principle in a case such as this, which turns fundamentally just on the examination of documents, that solicitors should be paid about twice as much as counsel who argues the case in court. That in a sense is what brings the law into disrepute, the duplication involved in that.


64. MR JUSTICE RICHARDS: I wonder whether that is right, if the solicitors have done a lot of work that enables counsel to operate quickly and efficiently and on lower fees than otherwise would have been the case, and there has been no duplication and nothing unreasonable. If one looks at the counsel's fees in the case, I think you will be in some difficulty in persuading me that counsel was not assisted in relation to the Secretary of State's case by the work done by the solicitors.


65. MR McCRACKEN: My Lord, may I say right at the outset, I am not seeking to strike out all of the solicitor's costs. I would not for a moment seek to do that, and I do not suggest that the Treasury Solicitor is not much more helpful than other solicitors in cases of this sort. It is right to recognise that this jurisdiction is one which is fundamentally based upon the examination according to some relatively straightforward principles of law of documentation, and in those circumstances one does not expect that solicitors will have to spend quite as much time as is indicated here.


66. Perhaps, I can make a point in a slightly different way as well, a related point, my Lord. If and insofar as it was necessary to take 18 hours to work out, as it were, the documentary proof that the Inspector had had regard to the evidence of my clients, the dispute about whether or not the commercial requirement was for 5.5 hectares -- if it really took 18 hours, then there was something somewhat amiss. I am not suggesting something jurisdictionally amiss with the way the Inspector approached it. I emphasise that I accept your Lordship's decision on that, but there was something about the organisation of the documentation that the world at large, in my submission, is entitled to expect should have been and was not there.


67. Therefore, could I indicate that I readily accept that my learned friend for the first Respondent is entitled to, at the very, least £3,000 of costs. In my submission, the second Respondent is not entitled to any costs. If your Lordship felt that the full entirety of the Treasury Solicitor's cost were recoverable, I suppose the commission of those fees for the affidavit of the second Respondent might, in those circumstances, be legitimately recoverable.


68. MR JUSTICE RICHARDS: Looking at the overall costs figures, your overall costs were some £14,000, the second Respondent's overall costs were some £18,500 and the Treasury Solicitor's overall costs were £5,500, including, in each case, counsel's fees.


69. MR McCRACKEN: My Lord, yes, but it cannot be right that the court should in any sense endorse, as a measure of those costs which are reasonable, that the unsuccessful litigant should have to pay to the successful litigant the market rate in a particular area of practice. That cannot be right and it would be plainly, in my submission, absurd to suggest that any counsel involved in this case, for example -- perhaps, I can stand back a moment. If I may, I would prefer to deal with the principle of the second Respondent's costs rather than the detail of it, because if the question does not arise, the points that I would be wishing to make need not be made and I am wearing your Lordship unnecessarily.

70. Therefore, I can do no more than submit that it is not, in interest of the reputation of the legal service of the country, that fancy market rates should be reflected in the Orders for costs that unsuccessful litigants have to pay.


71. Unless I can be of any further assistance, those are my submissions on the principle in relation to the second Respondent and detail in relation to the first Respondent.


72. MR JUSTICE RICHARDS: Do either of you want to say anything in response?


73. MR TREVELYAN THOMAS: In respect of our affidavits you will remember we were criticised for putting our affidavit in late. One of the reasons, I can tell your Lordship, why it was late was because we were waiting to see if the first Respondent did file any evidence.


RULING AS REGARDS COSTS

74. MR JUSTICE RICHARDS: The Applicant will pay the costs of the first Respondent, the Secretary of State. There will be no Order as regards the costs of the second Respondent. The second Respondent would not normally be entitled to costs in a matter of this kind and the particular circumstances of the present case do not, in my judgment, justify an award of a second set of costs.


75. I acknowledge that the second Respondent did some work on the evidence, though I am not satisfied that it would have increased the costs of the Secretary of State by a substantial amount if that work had been done instead by the Secretary of State. In any event, however, I take into account the fact that attendance by or on behalf of the second Respondent was not, in my view, necessary at the hearing itself. There was not likely to be a separate issue. Insofar as separate submissions were made on behalf of the second Respondent, they did not find favour with the court and I have regard to the fact that the second Respondent lost on that issue in deciding on what the appropriate overall Order is. As I have indicated, the appropriate Order is that there should be no Order in relation to the costs of the second Respondent.


76. As to the quantum of the Secretary of State's costs, I am not satisfied that any unnecessary or unreasonable costs were incurred in the preparation of the case. In my judgment, it is necessary to look at the costs incurred by the solicitors and costs incurred by way of counsel's fees in the round in order assess the reasonableness of the costs incurred by a particular party. I note that the overall costs of the Secretary of State are substantially lower than the overall costs of either of the other two parties, and I do not think that there is any basis upon which I should reduce the claim that is made by the Secretary of State.


77. I will, therefore, assess costs in the sum of £5,477.72, being the total amount in the first Respondent's Schedule of Costs.


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