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Cite as: [1999] EWHC Admin 748

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LONDON BOROUGH OF CROYDON v. SECRETARY OF STATE FOR ENVIRONMENT v. LEX SERVICE PLC [1999] EWHC Admin 748 (28th July, 1999)

IN THE HIGH COURT OF JUSTICE CO/4324/98; CO/4482/98

QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST )


Royal Courts of Justice
Strand
London WC2

Wednesday, 28th July 1999

B e f o r e:

MR JUSTICE KEENE

- - - - - - -

THE LONDON BOROUGH OF CROYDON
-v-
THE SECRETARY OF STATE FOR THE ENVIRONMENT
-and-
LEX SERVICE PLC
_ _ _ _ _ _ _ _

REGINA

-v-

(1) THE SECRETARY OF STATE FOR THE ENVIRONMENT
(2) LEX SERVICE PLC
EX PARTE THE LONDON BOROUGH OF CROYDON
- - - - - - -

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

MISS M MACPHERSON (instructed by the Director of Corporate Services, Legal Services Division, London Borough of Croydon, Croydon CR9 3JS) appeared on behalf of the Applicant.

MR J KARAS (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Respondent.

MR C KATKOWSKI QC (instructed by Berwin Leighton, London EC4R 9HA) appeared on behalf of the Second Respondent.

J U D G M E N T
(As approved by the Court)
(Crown Copyright)
Wednesday, 28th July 1999 .

1. MR JUSTICE KEENE: These proceedings concern a site adjoining the Purley Way, Croydon, which falls within the area for which the Applicant is the Local Planning Authority. The Applicant seeks to challenge two decisions made by a Planning Inspector arising out of a planning appeal in relation to the site brought by the second Respondent, Lex Service Plc. By an application for judicial review, the Applicant wishes to have a declaration that a decision by the Inspector not to adjourn a public inquiry into the appeal was unlawful. By an application made under section 288 of the Town and Country Planning Act 1990 ("the Act"), a challenge is also mounted to the ultimate decision of the Inspector to allow the planning appeal. It is agreed by all parties that the attack on the decision not to adjourn cannot be brought under section 288 but only by way of judicial review: see Co-operative Retail Services Limited v Secretary of State for the Environment [1980] 1 WLR 271.


2. On 30th January 1998, the second Respondent submitted an application for permission to develop the site for a used car sales office, workshops, canopy and associated car parking. The Local Planning Authority failed to determine the application within the requisite period and an appeal was lodged on 6th April 1998. Shortly afterwards the Planning Inspectorate fixed the dates for a public inquiry. It was to begin on 2nd September 1998. That date was confirmed by a letter from the Inspectorate dated 5th May 1998, that is to say approximately four months in advance of the inquiry date. It is not suggested by the Applicant Authority that that period did not allow it adequate time to prepare its case, nor did it object at the time to the date.


3. However, the planning officer who was dealing with this matter within the planning department did not move quickly to make such preparations. It seems that he misinterpreted a direction given by the Highways Agency under Article 14 of the Town and Country Planning (General Development Procedure) Order 1995. That article empowers the Secretary of State and those acting on his behalf to give a direction restricting the grant of permission by a Local Planning Authority. That is what happened here. But the officer seems to have treated the direction as preventing this matter even going to the relevant Committee for its consideration. Ms Macpherson, who appears for the present Applicant, accepts that that is what happened and that the officer was in error. It is commonplace, when such a direction is given, for the planning application to be reported to the Committee so that the Committee can deal with the other planning merits, subject always to the prohibition on it granting permission, and this is particularly so when an appeal is pending.


4. In any event, I am told that by July 1998 the Local Planning Authority had put arrangements in hand to prepare for the inquiry. By then a second application had been submitted by the second Respondent for a very similar development with only very limited differences. Both applications were reported to the Plans Sub-Committee meeting on 6th August 1998. The Sub-Committee had, I am told, power to refuse permission but, as the proposal was a departure from the development plan, the Sub-Committee had no power to grant permission. But the purpose of reporting the first application to the Sub-Committee is quite clear from the officers' report. In it the members were told that the appeal was scheduled to be heard at an inquiry on 2nd and 3rd September, and that:


"The Sub-Committee have therefore to decide whether or not to contest the appeal."

5. It is agreed that it was open to the Sub-Committee to decide to contest the appeal. Ms Macpherson says the officers expected the members to agree with the recommendation in the report which was to contest the appeal and to refuse permission on the second application.


6. In fact, the Sub-Committee did nothing of the sort. It resolved that the appeal application be not determined, that is to say by the Sub-Committee. The reason for this can be discovered readily enough by looking at the decision it made on the second application. There it resolved to refer it to the full Committee with a recommendation to grant permission. So one can readily see why the members did not endorse the officers' recommendation to contest the appeal which was to be heard on 2nd September.


7. It seems that immediately after the Sub-Committee meeting on 6th August there was some discussion between a representative of the second Respondent and a planning officer about the possibility that the inquiry might be adjourned, but it seems clear that there was no agreement to that effect. In any event, according to an affidavit sworn herein by Peter Kenneth Weatherhead, the second Respondent submitted its pre-inquiry statement on 19th August 1998 and its one proof of evidence on 24th August 1998.


8. The following day an officer of the planning department wrote to the Planning Inspectorate seeking an adjournment or postponement of the inquiry. That letter seems to have been sent by fax, because by a faxed letter also dated 25th August 1998 the second Respondent's agents strongly opposed any adjournment, pointing out that the application for permission had been with the Local Planning Authority since January and that the inquiry had been fixed since 5th May. The Planning Inspectorate refused to postpone the inquiry, but stated that it was open to the Local Planning Authority to ask the Inspector to adjourn it.


9. That is what the Applicant did on 2nd September 1998. According to notes taken on behalf of the second Respondent, a solicitor from the Council's legal department sought an adjournment for 8 weeks so that the matter could be brought before the full Committee in late September and the full Council in October. The Inspector's decision letter confirms that an 8-week adjournment was sought. It was pointed out by the solicitor that the officers had no authority to contest the appeal as things stood. They could not call witnesses or cross-examine and so the Inspector would not have the assistance of the Local Planning Authority in determining the issues. Counsel for the second Respondent vigorously opposed any adjournment, pointing out that the date had been fixed since 5th May and that the Local Planning Authority had had time to take the application to Committee earlier than August. He also stressed that the uncertainty over highway matters need not have prevented a full consideration of other aspects of the appeal proposal by the Council.


10. The Inspector was evidently concerned about the situation which had arisen. He was told that the Sub-Committee had been minded to grant permission and that he would have the officers' report to that Sub-Committee to assist him. He expressed some anxiety about whether the full implications of the employment aspects of the case would be picked up in the absence of the Local Planning Authority. But eventually, after the lunch adjournment, he decided the inquiry should go ahead.


11. In his eventual decision letter he dealt briefly with his reasons. After referring to the submissions of both sides he said:


"Such arguments and the consequent technical implications for the assessment of the scheme were described to me at length. Although the Council had not submitted a pre-inquiry statement or a proof of evidence, a committee report was available, as was a report for a similar scheme. The Highways Agency was represented at the inquiry. Consultations had been made in connection with the application and residents had been informed of the inquiry. I concluded that I had available adequate sources of information upon which to reach a planning decision on the merits of the case, and I decided to proceed with the inquiry." (Paragraph 4)

12. On this issue of the decision not to adjourn, it is submitted on behalf of the Applicant that the Inspector acted unfairly in refusing an adjournment. Ms Macpherson emphasises that, when dealing with procedural matters of this kind, the test is one of fairness rather than of Wednesbury unreasonableness. I note that that is not in dispute. R v Panel on Taker-Overs and Mergers, ex parte Guinness Plc [1990] 1 QB 146 rejected a test of Wednesbury unreasonableness, pointing out that the courts are able to act as the arbiter of what is procedurally fair. That approach has been followed in many cases, including L v Royal Borough of Kensington and Chelsea [1997] ELR 155, upon which Ms Macpherson relied.


13. Having said that, it has also to be recognised that a decision whether or not to adjourn is first and foremost a matter for the tribunal, inferior court or Inspector in question. In ex parte Guinness itself, Lord Donaldson MR, at page 178A stated:


"I also remind myself as a general proposition, that a decision whether or not to adjourn a hearing is par excellence a matter for the exercise of judicial discretion by the court or tribunal seised of the matter and that it is well settled that, on an appeal from such a decision, an appellate court will not intervene only on the ground that it thinks that it would have reached a different decision. It must be satisfied that the first instance decision was wrong in principle or, which is usually the same thing, that it resulted in from a self-misdirection. ..."

14. Lloyd LJ (as he then was) adopted a similar approach at page 183H. In the planning context, the courts have emphasised that it is not enough to justify judicial intervention that the court itself would have decided differently on the adjournment application. The court must be confident that the decision was clearly wrong: see R v Secretary of State for the Environment, ex parte Mistral Investments [1984] JPL 516, following ex parte Bullen , a decision of the Divisional Court, dated 7th May 1976 (unreported). So the test is one of fairness, but the court should only intervene where it is satisfied that the decision was wrong in principle or demonstrably and clearly unfair.


15. With that test in mind, I revert to the case for the Applicant. In support of the argument that the Inspector here acted unfairly, it is said that he decided not to adjourn purely on the basis that he would have enough information for an informed decision on the planning merits to be made. It is contended that he did not rely, when making his procedural decision, on the Council's conduct. Therefore, one can use his failings in the decision on the merits to deduce that he was wrong in his conclusion that he had enough information.


16. Reference is then made to the decision of Webster J in R v Dairy Produce Quota Tribunal, ex parte Lifely [1988] Est. Gaz. LR 79, where the court placed weight on the absence of any public interest in favour of the refusal to adjourn on the facts of that case. It was one where the refusal of an adjournment had been based on the personal inconvenience to the members of the tribunal which would have resulted. In the present case it is submitted that the only public interest pointed towards allowing an adjournment, that interest being in the Local Planning Authority giving evidence.


17. On behalf of the Secretary of State, Mr Karas submits on this issue that the Inspector had to have regard to the interest of all parties and to the efficient administration of the planning system. He contends that there is a public interest in avoiding unnecessary delay in the making of planning decisions. In addition, it is said that where a party has the opportunity to participate and fails to take that opportunity, it is not unfair if he subsequently finds that he cannot participate. That, it is said, aptly describes the situation into which this Local Planning Authority put itself. Mr Karas argues that the Inspector was entitled to conclude that he would have enough information to arrive at a proper decision on the planning merits, and he resists the suggestion that one can look at the ultimate decision to see if the procedural decision was fair or unfair. He points out that one can get decisions on the substance of a case which are open to challenge, even where there has been no unfairness in the procedures leading up to such decisions.


18. Mr Katkowski QC for the second Respondent submits that as a matter of principle one should judge the facts as they would have appeared to the Inspector at the time, and not retrospectively. In addition, any other approach would mean waiting until the substantive decision appears, at which point there is a statutory prohibition on quashing the substantive decision by way of judicial review because of such a procedural failing. One would therefore be encouraging a highly unsatisfactory state of affairs.


19. He contends that the problems in the present case were of the Council's own making, and that further delay would have been both prejudicial to his clients' interests, since they wanted this development, and contrary to the general public interest. It is also stressed that the Inspector clearly considered the relevant aspects of the application to adjourn with great care and at considerable length, so that most of the opening day was consumed by this matter. In those circumstances, including the fact that the Council had never resolved to oppose this development, the Inspector, he says, cannot be characterised as wholly wrong.


20. I have already indicated my acceptance of the proposition that the test on this first issue is whether the Inspector's refusal to adjourn was wrong in principle or demonstrably and clearly unfair. In applying that test, it seems to me that the conduct of the complainant must normally be relevant. As Mr Karas in effect says, if the complainant has brought the problem on himself, he may be in no position to argue unfairness. I cannot accept the Applicant's contention that the Inspector here ignored the past conduct of the Local Planning Authority. In his decision letter, he expressly refers to the submissions made on behalf of the second Respondent that the Council had known about the inquiry for a considerable time and that it could have considered the non-highway aspects. It is to be observed that, in the affidavit filed in support of this application for judicial review, it is accepted that the Inspector there correctly summarised those submissions by counsel for the second Respondent, and it is said that "the Inspector was persuaded by his arguments". Ms Macpherson accepts that it was relevant whether the Authority should have been ready by 2nd September.


21. It seems to me that the Local Planning Authority was almost entirely responsible for the predicament in which it found itself. First, there had been delay on its part in preparing for the inquiry as a result of an officer's misunderstanding of the effect of the direction issued by the Highway Agency. That probably was not a fatal delay, but this matter could readily have been taken to Committee before August 1998. Secondly, it was the decision of the members of the Sub-Committee on 6th August 1998 which ultimately created the difficulties for this Applicant. The Sub-Committee members were expressly told that they had to decide whether or not to contest the appeal because the inquiry date was fast approaching. Their decision, in effect, was not to contest it, which came as a surprise to the officers. But it was open to them to have decided otherwise and in those circumstances the Local Planning Authority would presumably have appeared at the inquiry and played a full part. The Sub-Committee chose a different course of action, and it was that decision which put the Authority, or at least its officers, into difficulties. This is a case where the Authority, through one of its Sub-Committees, tied its own hands.


22. Of course, it was nonetheless right and proper for the Inspector to consider whether he was left in such an invidious position that he had to adjourn, simply to obtain enough information for a proper decision. He undoubtedly asked himself that question. He had the officers' report to the Sub-Committee; he had a proof of evidence from the second Respondent's expert witness; he had the relevant parts of the UDP, setting out the policies which had led to the officers' recommendation of refusal. He knew that he would be conducting a view of the area and of the site, and he had the other material to which he refers in paragraph 4 of his decision. Moreover, he had to consider the adequacy of this information in the context of his knowledge that the Council's own Plans Sub-Committee had decided that a scheme such as this should be recommended for grant of permission.


23. In all those circumstances I find it impossible to say that his decision that he would have adequate information was one to which he could not properly have come.


24. He was undoubtedly conscious that there is a public interest in ensuring that sound planning decisions are made. But there is also a public interest in avoiding unnecessary delays to the making of such decisions, as Ms Macpherson acknowledged in the course of argument. I reject the suggestion that such delay is merely a matter of private concern to the developers. Were it so, the first Respondent would not have had, for many years, policies designed to ensure that such planning decisions are made promptly. That is something which is in the public interest. The situation is, therefore, quite different from that being dealt with in the case of ex parte Lifely . It is interesting to observe that, during the argument over an adjournment at the inquiry, the solicitor for the Local Planning Authority is recorded as conceding that the Inspector would not be doing anything wrong were he to proceed with the inquiry, but that he might reach a decision on the appeal which was open to challenge.


25. It is difficult to see how it can be right to judge the fairness of such a procedural decision by looking at the strengths and weaknesses of the eventual decision on the merits. That would be judging the procedural decision with the benefit of a hindsight which was not available to the decision-maker. It cannot properly illuminate the issue of the fairness or otherwise of that decision. Nonetheless, I will revert to this aspect when I have considered the arguments on the section 288 application simply as a precaution. Subject to that point, although the Inspector was obviously put into a difficult position by the Local Planning Authority's conduct, I conclude that he acted fairly in refusing an adjournment. Certainly it has not been established that his decision was wrong in principle or demonstrably and clearly unfair.


26. I turn therefore to the section 288 application. In his decision letter, the Inspector allowed the appeal and granted permission for the proposed development. He did so, having earlier identified four issues in the case. Only the first of those is relevant to the present proceedings, because it relates to the objection raised by the officers in their report to the Sub-Committee. The Inspector defined the issue as the effect of the proposal on the use of land for industrial and warehouse purposes in Croydon. In their report, the officers had recommended that the appeal be contested on the ground that:


"The development would result in the loss of land for business, industrial, and warehouse use and would thereby be contrary to Policies EM9 and SP29 of the Unitary Development Plan."

27. This issue arose because the site was located in an area known as the Purley Way Industrial Area North. Under Policy SP29 in the Council's UDP, provision will be made for business, general industry and warehousing in appropriate locations. Policy EM6 dealt specifically with areas such as this, stating:


"The preferred locations for large scale industry and large scale warehousing developments are the Purley Way North and South Industrial Areas, as defined on the Proposals Map. Smaller scale general industrial and warehouse development will also be permitted here, as will business use, subject to the office policies, EM1 to EM3. ..."

28. Policy EM9 was in the following terms:


"The Council will refuse permission for development involving the loss of business, industrial or warehousing uses in the Commercial and Industrial Areas."

29. It is to be noted that in the UDP "business use" is defined as Class B1 uses, that is to say as office (other than Class A2), light industrial, and research and development uses, capable of being carried out in any residential area without harming residential amenity.


30. The appeal side was part of a former British Gas depot. It was by this time largely cleared of buildings and structures. It had an area of just over 1 hectare or about 2 1/2 acres. It fronted onto the A23 Purley Way. To the south of it was the remainder of the British Gas depot land, some 0.6 hectares or about 1 1/2 acres in area. In his decision letter, the Inspector set out the terms of the policies SP29, EM6 and EM9 and referred to the terms of the officers' objection. He then went on as follows at paragraphs 9 and 10 of his decision:


"9. In the sense that industry is involved with the manufacture of goods from raw products, the proposal would not comply with the definition of industry. On the other hand, industry is also associated with trade, and Policy EM6 also includes warehousing and office uses, which are not directly involved in the manufacture of goods. The sale of cars may not have been envisaged in areas allocated for large scale industry and warehousing. However, the Policy is widely drawn and it seems to me that Policy EM6 could encompass a range of activities such that it would be unreasonable to reject the proposal for this reason alone.

10. Industry can generate significant employment. The survey you presented indicates that the employment density created by the development would be towards the top of the range typically expected with modern industrial uses. Although associated with the sale of cars, about 23 employees would be involved in the maintenance of vehicles, there would be about 4 in the office and some 16 directly involved in selling the vehicles. 9 part-time posts would also be provided. Hence the number of jobs and the range of employment skills would compare favourably with those typically created by industrial uses. Warehousing, an acceptable use under Policy EM6, might well provide a lower level of employment and a more restricted range. I find no reason to question the estimated number of jobs or their division between functions, and I consider that the jobs created would not be untypical of those which might be expected from activities falling within the range of uses to which Policy EM6 applies."

31. He then dealt with the characteristics of the Purley Way Industrial Area North, including its fragmentation by retail uses, and made reference to the Daewoo car sales centre. This was located a short distance from the appeal site, also fronting Purley Way and within the same industrial area. The Inspector noted that it had been granted planning permission in 1998. He said at paragraph 11:

"... Whilst the appeal proposal is not identical to this permitted development, it is very similar, being for the same purpose and having a similar scale. Both sites are within Purley Way Industrial Area North and, in my opinion, this extant permission really reinforces my conclusion that the appeal proposal should not be rejected through the application of Policy EM6."

32. He then referred to Policy EM9, whereby permission would be refused for development involving the loss of industrial, warehouses and business uses. He commented as follows at paragraphs 12 and 13:


"12. ... The appeal site is vacant and the buildings have been demolished. In this case the proposal would not cause the loss of industrial, warehouse or business jobs directly, although it would limit the potential for re-instating such uses.

13. On the other hand there appears to be other vacant land and buildings in this industrial area. The appeal site forms the northern part of a former Gas Depot. The southern part is owned by the appellant and with the improvement of the access to this part of the land it might become available for uses consistent with Policy EM6. Moreover, the density and range of jobs which would be created by the proposed car sales business would be of a form to be expected within an area allocated under Policy EM6. Consequently, I consider that the application of Policy EM9 in this instance is not of such weight as to be a determining matter."

33. The first point made on behalf of the Applicant is that the Inspector failed to make clear whether he regarded the proposed development as according with the development plan. Ms Macpherson refers to section 54A of the Act which states that:


"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

34. She accepts that, in the light of decision in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 455 and other authorities, a decision-maker need not expressly state whether the proposal accords with the development plan, so long as one can see from his decision what he concluded on this aspect. She also accepts that an Inspector need not follow any common or set pattern in his decision, but can make an overall assessment of the development plan and other considerations, as appears from the speech of Lord Clyde in the City of Edinburgh case. However, it is submitted that it is unclear at paragraph 9 of the decision whether the Inspector here is saying that the proposal falls within EM6 or rather that the wide range of uses in that policy is a material consideration. Hence the decision is ambiguous on that point. It is also contended that he failed to give proper consideration to Policy EM9, which was at the heart of the officers' policy concerns, and instead came to it after considering Policy EM6.


35. So far as EM6 is concerned, the Inspector's finding seems to me to be reasonably clear. He does not suggest that the proposed mixed use - part retail, part industrial and, as the Applicant concedes, sui generis - actually falls within the language of EM6. His comments at paragraph 9 emphasise the wide range of uses permissible under that policy, embracing, as it does, office uses, industry and warehousing, and because of that he concludes that the proposal should not be rejected "for that reason alone", that is to say simply because car sales do not come within the policy. Likewise, his reasoning in paragraphs 12 and 13 about Policy EM9 is sufficiently evident. He does not suggest that the proposal escapes conflict with that policy, because he finds that it would limit the potential for reinstating the preferred uses. But he concludes that EM9 in this instance is not of such weight as to be a determining matter. That conclusion can be seen to be based on his assessment of other material considerations. The contention that he failed to give proper consideration to EM9 cannot be sustained. I also accept the submissions of both Respondents that the sentence at the end of paragraph 8 of his decision, "... The proposed use would be for the sale of cars, which would not comply with the designated purpose of the site", is an expression of his view, not the record of the Council's view. That makes it even clearer that he was finding that the scheme did conflict with the policies and that it was because of other material considerations that he allowed the appeal.

36. The second argument advanced on behalf of the Applicant under the section 288 challenge is that the Inspector should in the circumstances have adopted a more inquisitorial approach. Ms Macpherson relies upon the Court of Appeal decision in Dyason v Secretary of State for the Environment (1998) 2 PLR 54. That was a case concerning an informal hearing, where, as a matter of procedure, there was no cross-examination. The court noted that, nonetheless, conflicting propositions and evidence would often be placed before the Inspector. In those circumstances, said Pill LJ at page 61:


"... If cross-examination disappears, the need to examine propositions in that way does not disappear with it. Further, the statutory right to be heard is nullified unless, in some way, the strength of what one party says is not only listened to by the tribunal but is assessed for its own worth and in relation to opposing contentions. ..."

37. He went on, on the same page, to say:


"... A relaxed hearing is not necessarily a fair hearing. The hearing must not become so relaxed that the rigorous examination essential to the determination of difficult questions may be diluted. The absence of an accusatorial procedure places an inquisitorial burden upon an Inspector. ..."

38. Ms Macpherson argues that those points are applicable to the present case, because of the absence of the Local Planning Authority from the main part of the inquiry. Consequently the Inspector should himself have tested the evidence by questioning the expert witness for the then Appellant more thoroughly, including asking more questions about industrial land supply and vacancy rates within the Borough. He should also have taken the report on that topic by consultants advising the Local Planning Authority, a report which was available at the inquiry. His conclusions on industrial land availability were not, it is said, borne out by the evidence.


39. In support of this submission, attention is also drawn to two factual matters where it is said that the Inspector fell into error in his decision letter. The first concerns employment density. At paragraph 10 of his decision, he referred to a survey put in evidence by the second Respondent's expert witness, a survey which the Inspector said indicated that the employment density created by the proposed development would be towards the top of the range typically expected with modern industrial uses. Ms Macpherson points out that the proposed scheme was expected to produce 43 full-time jobs and 9 part-time ones, and that part of the evidence from the expert witness showed that this gave a workers to hectare ratio over the site of 45.6. This was within the range for B2 general industrial uses but towards the bottom of the range, not the top. The range for site employment density on general industrial sites was 40 to 74 workers per hectare.


40. Secondly, the Applicant criticises a sentence in the decision letter where the proposal was compared to the Daewoo centre. I have quoted the relevant passage earlier. Ms Macpherson contends that the Inspector was wrong to describe the appeal proposal as "having a similar scale" to the Daewoo centre, because the latter was on a smaller site but produced 50 jobs. It was in employment policy terms more acceptable.


41. It is convenient to consider those factual matters first. As to employment density, Ms Macpherson is undoubtedly right if one looks solely at workers per hectare. But the survey to which the Inspector referred also dealt with this topic in terms of areas of built floorspace per worker. On that basis the appeal proposal produced a figure of 18.1 square metres per employee, which did compare favourably to national and regional figures set out in the evidence from expert witness. The Inspector's comment that it would be towards the top of the range for modern industrial uses seems to have been based on that evidence. Whether that is the most appropriate measure of density of employment is not a matter for this court, and in any event the evidence had drawn attention to the issue of site coverage by buildings. I am not persuaded that this was a factual error by the Inspector - it reflected evidence before him.


42. It is true that the Daewoo car sales centre occupies a smaller site. The evidence shows that its site area is about two-thirds that of the appeal side. But the number of jobs produced there, at 50, is broadly comparable to the numbers expected at the proposed development. The Inspector commented that the appeal proposal was not identical to that permitted at that other site, so he was clearly aware that there were differences. I cannot see that to describe the two developments as being of a similar scale indicates an error of fact on his part.


43. I return to the submission about the need for the Inspector to have adopted an inquisitorial role. No one suggests that an Inspector is required to engage in a search for material not put before him. What the Dyason case establishes is that, when there is an informal hearing which, as a matter of procedure, normally excludes cross-examination, the Inspector has to play an enhanced role in order to resolve conflicts of evidence. In addition, such an Inspector must not arrive at a finding adverse to a party without having put the point to the party in question or his witness, and that is what happened in the Dyason case.


44. There is force in the point made by Mr Katkowski, on behalf of the second Respondent, that Dyason was dealing with a different situation from that facing the Inspector in the present case. This was an inquiry where procedurally there was an opportunity for cross-examination inter partes but where one side put itself into a position where it could not avail itself of that opportunity. There were no "conflicting propositions", of the kind referred to in Dyason, to be explored, since the Local Planning Authority had not resolved to oppose the proposal. Undoubtedly in such a situation the Inspector does need to satisfy himself that he has reliable and adequate evidence and will normally ask some questions to achieve that. But he does not have to achieve some form of substitute cross-examination through his own questions.


45. In the present case there is a note of the proceedings exhibited to an affidavit before the court. It shows that the Inspector asked a number of questions of the expert witness, Mr Weatherhead, covering the comparability of the Daewoo centre, the UDP policies and the possible need to safeguard industrial and warehousing land. Given the context of his knowledge that the Local Planning Authority's own Sub-Committee had resolved to recommend a grant of permission for a very similar development of this site, the extent of his questioning cannot be judged to have been inadequate.


46. On the specific point of land supply and vacancy rates, the Inspector obtained information as he was entitled to do from his site inspection, noting in paragraph 13 of his decision that there appeared to be other vacant land and buildings in this industrial area. He was also influenced by the fact that the improvement to the access proposed in the appeal scheme could mean that the remainder of the former British Gas land would become available for uses consistent with EM6. Permission here could therefore in a practical sense make a contribution to industrial land supply in that way. No doubt he could have been provided with further information on industrial land supply, had the Local Planning Authority been participating in the inquiry, but that does not of itself render his decision open to attack. It may be that the Council officers could have given him the consultants' report, but they seem to have been dissuaded from doing so by the advocacy on behalf of the second Respondent. That was a matter for them. The Inspector is not recorded as having declined to accept the report. He referred to its existence towards the end of his decision as being "informal guidance", which is no doubt not the most accurate way of describing it. But I bear in mind that he had not seen it, and in any event the use of a single infelicitous phrase, if that is what it was, does not by itself render a decision vulnerable to judicial action. That is especially so when the report itself, which has been put before me as an exhibit, concluded that the UDP industrial land allocation would satisfactorily meet future requirements for B1, B2 and B8 floorspace (see para 7.1.10).

47. There is therefore no proper basis upon which the Inspector's decision should be quashed under section 288 of the Act. It follows that, even if I had been minded to take any deficiencies in his decision on the merits of the appeal into account when considering the fairness of his procedural decision, such a course would not have altered the conclusion to which I have come on the judicial review application and which is set out earlier in this judgment.


48. In the circumstances both these applications before me must be dismissed.


49. MR KARAS: My Lord, in those circumstances I would ask for a formal Order to that effect?


MR JUSTICE KEENE: Yes.

50. MR KARAS: I would also ask that the Local Authority pay the first Respondent's costs?


51. MR KATKOWSKI QC: My Lord, under in today's regime, post Civil Procedure Rules, that should be subject to detailed assessment if not agreed, which, I think, is the formulation. I do have an application for the Council, the Applicant, to pay another set the costs, that is to say my client's costs to this extent. First of all, the affidavit that was sworn and put in on behalf of my client, the second Respondent, has proven invaluable in the court's assessment of the facts and the merits of the challenges. I would certainly submit that, in any event, the costs of that affidavit should be paid by the Council to the second Respondent.


52. Beyond that there is the question of the two proceedings: the second 288 application, on the one hand, and the judicial review on the other hand. In relation to the section 288 application, I am obviously fully aware of the principles set out in Lord Lloyd's speech in the Bolton case, and I would find it very hard to say that I had such a separate interest, and one would, if you like, trust the Secretary of State to defend his own Inspector's decision on the meaning of the various policies and so on and so forth, so I do not, being pragmatic, seek to waste my Lord's time by making an application in relation to section 288.


53. In relation to the judicial review proceedings, I do say that the situation is quite different because there I do submit that the developer, my client, did have a particular interest which required separate representations in these proceedings, not least because, of course, he was the other party to the debate on whether or not there should be an adjournment, and not least because he has a particular interest to protect. As my Lord has found, the decision should be made promptly without undue delay and so on and so forth. I do say that there is a different prospective between a judicial review and a 288 application. It is not simply appropriate, if you like, for the court to say that this could have been for the Secretary of State but it was not right for the second Respondent to feel that it should be in court also to defend the Inspector's decision to refuse to adjourn the inquiry. I do say that there is a difference in principle between the two sets of proceedings. The pragmatic result of that is, if my Lord is at all with me on that application for the costs of the judicial review application, my Lord could either order them in the sense that the costs of the second Respondent in relation to the action by reference to the number of judicial review proceedings should be paid by the Council to the second Respondent or, my Lord, given the extreme difficulties that are likely to be in practice in separating out the costs and so on and so forth ----


54. MR JUSTICE KEENE: You have a single brief fee, I imagine?


55. MR KATKOWSKI QC: I have a single brief fee. There have been, of course, conferences and so on and so forth. In those circumstances, I would submit that the most appropriate course would be simply for an Order that the Council pay half of the costs of the second Respondent in relation to the two matters. That would seem, with respect, to be, if my Lord is with me on that point ----


56. MR JUSTICE KEENE: Are you asking for that as well as the cost of the affidavit.


57. MR KATKOWSKI QC: My Lord, that would, of course, embrace the cost of the affidavit. I would not ask for the cost of the affidavit on top. What I am saying is that if my Lord is against me on the larger sum, in any event, with respect, I must be entitled to the cost of the affidavit. Those are my submissions on that point.


58. MS MACPHERSON: Of course, I cannot resist Mr Karas's application and nor do I seek to do so. In respect of Mr Katkowski's application, I had already given some thought to the issue of the affidavit. This was an affidavit which was sworn in order to resist leave being granted for the judicial review, and I am bound to say that I find it hard, as matters have turned out, to resist that application. I agree with Mr Katkowski on the submissions as to the section 288.


59. On the issue of the judicial review, Mr Katkowski's brief fee and the other costs, I wonder if Mr Katkowski is correct, having heard your Lordship's judgment, that in fact there was a separate matter for him to argue, given that your Lordship has ruled that the issue of delay is not a private issue between the Local Authority and the developer, but rather a matter in the public interest for the proper administration of the planning system.


60. My Lord, hearing the submissions that Mr Katkowski has made, I have found it difficult to distinguish them separately from those that have been made or could have been made on behalf of the Secretary of State. I ask your Lordship to find that there was no separate issue argued before you on behalf of the second Respondent. Therefore, although I cannot resist the costs for the affidavit, I would ask your Lordship not to award costs in any other respect.


61. My Lord, in relation to Mr Katkowski's analysis as to the way in which the costs should be proportioned, if you are against me on the principle of the judicial review, I would suggest to your Lordship that the apportionment of 50 per cent for judicial review was putting it extremely high. The judicial review issue was one on which there was some discussion this morning as to whether or not the issue could have been brought in the context of section 288, and your Lordship, indeed, will recall that on page 6C of the bundle, where I explained the basis on which the two applications are made in the alternative, I would ask your Lordship to find that if you are against me on the principle of judicial review, that it does not come to 50 per cent of the total costs of the second Respondent.


62. MR JUSTICE KEENE: Do you want to say anything further, Mr Katkowski.


63. MR KATKOWSKI QC: It is not, of course, a question whether there was a separate issue. The question is whether it was right, and should be dealt with as a matter of the costs, for the second Respondent to be separately represented in order to make submissions on whether a particular perspective or angle or aspect of the case justified not only their appearance but whether the unsuccessful Applicants should pay their costs.


64. As to the 50 per cent, frankly if it is to be cast off to agreement or taxation or detailed assessment, so be it, but, if anything, 50 per cent frankly would be, I suspect, generous to the Local Authority, because we have in fact spent more time on the judicial review in this hearing than we have on the 288 as it has turned out. 50 per cent is trying to be pragmatic. Those are my submissions.


RULING AS REGARDS COSTS

65. MR JUSTICE KEENE: I approach this on the basis that I have to arrive at a decision here which is just and fair to all parties. I bear in mind the earlier decision of the Bolton case. I also note that virtually all the evidence, other than the decision letter itself upon which the Respondents rely in these proceedings, has come from the second Respondent, which is of some significance in the judgment at which I have to arrive. There has clearly been some overlap, however, in the terms of the arguments being presented by each of the two Respondents. In those circumstances, I take the view that something more than just the costs of the affidavit ought to be paid to the second Respondent. Doing the best that I can in all the circumstances, I propose to order that the Applicant pay the costs of the first Respondent and pay one-third of the costs of the second Respondent. Those costs to be dealt with by way of detailed assessment, if not otherwise agreed.


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