Botley Parish Action Group, R (on the application of) v Eastleigh Borough Council & Ors

Neutral Citation Number: [2014] EWHC 4388 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT CO/98/2014 Royal Courts of Justice Strand London WC2A 2LL Friday, 28 November 2014 B e f o r e: MR JUSTICE COLLINS - - - - - - - - - - - - - - Between: THE QUEEN ON THE APPLICATION OF BOTLEY PARISH ACTION GROUP v EASTLEIGH BOROUGH COUNCIL Claimant Defendant MA BOTLEY LIMITED SOUTHERN & REGIONAL DEVELOPMENTS LIMITED MACDONALD BOTLEY PARK LIMITED - - - - - - - - - - - - - - Interested Parties Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - Mr Douglas Edwards QC and Ms Annabel Graham-Paul (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Claimant Mr Brian Ash QC (instructed by Eastleigh Borough Council) appeared on behalf of the Defendant Mr James Strachan QC and Ms Philippa Jackson (instructed by Clyde & Co) appeared on behalf of the First Interested Party - - - - - - - - - - - - - - J U D G M E N T SMITH BERNAL WORDWAVE MR JUSTICE COLLINS: This is a claim against a decision of the defendant Council to grant planning permission for substantial development on a site, some 81 hectares, to cater for 1,400 homes, together with some associated development, including an extension to a hotel, about 4,000 square metres of employment space, a primary school, a shop and various community facilities. The development is said to be the largest for new housing in the Eastleigh Borough area in the last 25 years, and there is no question but that it is a very substantial development. It is in the context of a requirement in the relevant strategy which was in existence which meant that there was a need for a further 6,000 dwellings in the area with which this case is concerned, in the sense that it extends around Botley. The fact is that the Council had fallen behind in the obligation to provide sufficient housing to cover a five-year period, and that was why this requirement was applied. The area in question, Boorley Green, as it is described, which at the moment constitutes as to its major part a golf course and the balance is not an area in which the existing plans provided for this sort of development. The existing plans are, it is accepted, out of date, and indeed the Council has been engaged in the process of preparing a local development plan which will be put to an inspector. Indeed as I understand it, the proposed plan is now in existence and the matter will be heard by a planning inspector early next year. This case turns upon the submission that there was an error in the officer's report to the Committee of the Council which reached the decision which is under attack, in that it informed the Committee that they were not entitled to have regard to an alternative site in deciding on the planning merits of the application in question. It was submitted that there was an alternative site, known as Allington Lane, which would meet, it was said, the necessary objectives, certainly for the time being, and which would have been a more suitable site for this particular development. That was clearly an issue which had been raised by the objectors, in particular the claimant objectors. It is very unfortunate that this claim has taken a very long time to be dealt with. It was lodged on 8 January 2014, the decision in question having been made on 28 November 2013, albeit a decision had been reached back in February 2013 that it was appropriate to grant permission, but that would be subject to the completion of section 106 agreement. That did not take place until later, hence the formal decision granting planning permission being at the end of November, in fact almost exactly a year ago now. The original claim as put forward relied on a number of grounds. So far as material, because some of them have clearly dropped away and have not been pursued, it was submitted that the Council erred in failing to refuse the application on grounds of prematurity. The prematurity argument was based upon the submission that the appropriate sites for the housing, and indeed other development that was needed in and around Botley, would be decided in the process of the local development plan. In that process there would be, as I have indicated, an inquiry by a planning inspector. The objectors, and indeed all the interested parties, could put to the inspector, an independent examiner, the matters upon which they relied. Whether this particular site, Boorley Green, would have been approved would have been a matter decided after full argument had been heard. It was on that basis that the claim was originally brought. That was consistent with the way in which the objectors had put their objections before the planning Committee. They had indicated, as indeed was essential if the argument was to get anywhere, that there were alternative sites available, in particular Allington Lane, and that therefore Boorley Green was the wrong site for a number of other reasons. But, as I say, since they appreciated that at that stage (albeit a very early stage in the process of the local development plan) the Council had clearly formed the view that Allington Lane was not an appropriate candidate for this development, in practical terms it was obviously sensible to appreciate that it was highly unlikely that reliance upon Allington Lane in its own right would get them anywhere. Indeed, it is right to note that the final version of the local development plan which is going before the inspector still does not regard Allington Lane as a reasonable possible alternative site for this particular development, and still regards Boorley Green as the correct site for it. I can well understand in those circumstances (and it is entirely consistent with the evidence that is before the court) why the approach relying on prematurity was adopted. However, unsurprisingly, having regard to the officer's report, as will be seen when I refer to the relevant passages, permission was refused because it clearly was not arguable that prematurity had not properly been put before the Committee and it was a matter for their judgment as to whether it prevailed to indicate that this particular development should not go ahead. Accordingly, in the course of a renewal, there were amendments, and the amendments in effect were that there was an independent ground for unlawfulness in the decision reached, in that the officer's report had, it was said, indicated that the Committee was not entitled to have regard to an alternative site independently of any question of prematurity. It was submitted that alternative site was a matter which should have been taken into account by the Committee and they should have been told that they were entitled to take it into account having regard to the nature of the development in question. That again met with refusal by Lang J. There was an appeal sought to the Court of Appeal, which was turned down by Sullivan LJ in June 2014. There was a renewal to Patten LJ, who, in September 2014, decided that the alternative site point was arguable and granted permission. Hence it comes before me now. I have said that it is particularly unfortunate that it has taken so long to come to a hearing because the whole basis upon which this permission was granted was because it was felt that there was a need for speedy development to begin to meet the housing shortage which had been identified in the defendant's area. Indeed, one of the conditions in the grant of planning permission was a somewhat unusual one, in that instead of the normal three-year requirement for steps to be taken to implement, that three-year period was reduced to one year, as I say because of the perceived need for the matter to be dealt with and the construction of houses to commence as early as possible. As it happens, it was decided then that the initial construction would be on the part of the site which did not affect the golf course, and it was not anticipated that the golf course would have to be removed until next year, 2015. This was because one SMITH BERNAL WORDWAVE of the substantial objections raised was based upon the disappearance of the golf course and the recreational facilities which that represented. That then is the somewhat unfortunate history of the process by which the matter comes before me today. There are in fact two grounds, which are (if I may put it this way) technically pursued, but Mr Edwards accepts that the second ground is parasitic upon the first, and if he fails on the first ground then he cannot found an argument on the second ground standing on its own. If of course he succeeds on the first ground, he does not need the second ground. Accordingly, I shall concentrate in this judgment on the first ground. The planning permission itself was eventually granted on 28 November 2013. There are a large number of conditions attached to it, but I do not think that in the circumstances, having regard to the issue in this case, it is necessary to go into it in any detail. I have already indicated what it covers. The officer's report is the crucial document which has to be considered in the circumstances of this case. It is a very substantial report which was provided for the Committee in February when it reached the decision in principle that planning permission should be granted, subject, as I say, to the section 106 agreement, and that was not put in place finally until some six months or so later. There are two principal paragraphs in that report upon which reliance is placed and which are said to amount to errors of law. The first is paragraph 118, which is under the heading "The Principle of Development - Accessibility/Location". This is said in paragraph 118: "There is much local concern, as evidenced in over 300 letters of objection, that the proposed allocation of this site does not accord with the NPPF guidance or the Council's own sustainability appraisal which assesses and compares possible housing allocation locations in terms of sustainability. Local residents believe that there could be better located, more sustainable alternatives for housing development on land of 'lesser environmental value'. Abundant and specific reference is made to the 'Allington Lane' site (a larger site considered in the SHLAA). Although the Environmental Statement submitted with this application considers possible alternative sites for development, Members should note that in regard to planning 'applications' rather than 'allocations' there is no requirement for a sequential approach to be taken. Rather, the NPPF stresses the importance of achieving sustainable development to meet identified needs. If a Local Plan has not been adopted which embodies the outcome of a consideration of alternatives, then an application for housing development must be considered against any other adopted elements of the Development Plan (the South East Plan and the saved policies of the adopted EBLP Review (2001-2011) with limited weight being given to the pre submission EBLP (2012-2029)). Consideration should also include other planning policy guidance e.g. Supplementary Planning Documents, material considerations e.g. the NPPF, and the specific merits or disbenefits of the individual proposal." SMITH BERNAL WORDWAVE The other paragraph particularly relied on in this context is to be found towards the end of the officer's report in paragraph 270 under the heading "Conclusion". I will come back to it to put it in context later. It provides: "The scheme would amount to a significant proportion of the necessary housing provision with the Borough. On the one hand the provision of that amount of housing would be an obvious benefit, but the relative scale of the development could prejudge decisions about the appropriate sustainable location for the development within the Borough. The application process is clearly not the mechanism to consider alternatives or additional locations and such a review will be part of the Local Plan process." It is submitted that the combination of those two paragraphs, and in particular perhaps the last sentence of 270, makes it clear to the Committee that they are not to be concerned with alternative sites as a free-standing ground for refusing permission in this case. However, they were directed that it was open to them to consider prematurity as a possible basis for refusal. That followed in the officer's report setting out the Government's 2005 document on the general principles of development, which indicated essentially the weight which should be attached to policies in emerging DPDs. What this boiled down to, having regard to the stage at which the proposals were, that since it was at a consultation stage with no early prospect of submission for examination, refusal on prematurity grounds would seldom be justified because of the delay which this would impose in determining the future use of the land in question. Accordingly, it was properly to be approached on the basis that perhaps no great weight should be attached to the emerging DPD. However, there was an argument that was referred to that permitting Boorley Green might set a trend for further development in the area. But the report made the point that the same or similar strategic arguments could be advanced with most large-scale housing developments whenever they came forward. In paragraphs 138 to 141, which I shall summarise, it was said that it was desirable that many objections against Boorley Green should be heard at a local planning inquiry. That is described as the "democratic process issue". But against that, it could be said that the ad hoc planning application was also a democratic process, and objectors often had a better opportunity to make their voices heard than at a local planning enquiry, and democratically elected councillors were making the decision. The summary was put in these terms: "139. ... there are reasonable prematurity arguments and democratic arguments against a grant of permission on Boorley Green now. If members conclude that these arguments are determinative, members should refuse on prematurity grounds. 140. However these arguments are not necessarily conclusive – they are simply factors to be put into the scale and balanced against other material considerations when the decision is made. Prematurity is one relevant SMITH BERNAL WORDWAVE circumstance among others, and the weight to be given to it will depend on the individual circumstances of the case. Prematurity is not a bar to the grant of planning permission. 141. It is considered that as this site is included within the pre-submission draft plan it would be difficult to substantiate a refusal by reference to it prejudicing the DPD process. The proposals are also located within the general area suggested by the South East Plan. Furthermore the application seeks to deliver housing for which the South East Plan shows a clear requirement. The lack of a 5 year housing land supply and the proposal's impact upon that supply in terms of its delivery timetable and are considered to be significant factors. The proposals are necessary to meet housing supply needs and in the circumstances the presumption in favour of sustainable development in the NPPF applies. It is recommended to Members that these considerations are sufficient to outweigh the prematurity and democratic arguments." It is conceded, inevitably, by Mr Edwards that he cannot criticise those paragraphs and those observations of the officers. It is left to the Committee to make the final decision, but officer are entitled to make recommendations, and indeed they will almost always make recommendations, but the Committee is not bound to follow those recommendations. However, the Committee will be well aware that if they do not follow such recommendations and the result is a refusal of planning permission they may be vulnerable on appeal, unless they have very good reasons for dissenting from the officer's recommendation, and it may result in a decision that they have to pay costs in due course. This is something which will be well known to all planning authorities and no doubt to all members of committees which have to deal with planning matters in any local planning authority. It is entirely understandable why the objectors decided that the sensible approach was to rely on a prematurity argument rather than simply putting forward Allington Lane as a feasible alternative. The reality was, as they well knew, that it had been ruled out, certainly at the early stage, by the Council, and that there was an environmental report which had considered alternatives (as it should have done in order to comply with the necessary legislation) which itself had ruled out Allington Lane as a possible sensible alternative. Accordingly, they must have appreciated as a matter of common sense that they were unlikely to persuade the Committee to accept that Allington Lane was a feasible alternative looked at on its own. Whether or not that was their thinking I do not know, but it is certainly consistent with the evidence which has been put forward and would make a lot of sense. However, that in itself did not mean that the Committee should not if appropriate consider the question of alternative site on its merits. So far as the existing plans were concerned, there is no doubt (and indeed the Committee was advised) that this development proposal was not in accordance with the relevant plan. It has been submitted that that was a slightly nuanced decision in all the circumstances. Maybe, but the reality is that what matters is that it was not in accordance with the existing plan. However, that plan was out of date, and in the circumstances the approach which is set out in the NPPF clearly applied. The relevant SMITH BERNAL WORDWAVE approach was that where there is no up-to-date plan, the presumption in favour of sustainable development applies, and whether particular development is sustainable will of course depend on the circumstances that apply in the individual case. Furthermore, paragraph 49 of the NPPF deals with the need for there to be a five -year sufficient housing policy in a particular planning area. In fact, paragraph 134 of the officer's report makes clear that Government policy is explicit in requiring Local Planning Authorities to boost significantly their supply of housing. The five-year housing land supply was not met in the defendant's area. As was indicated in paragraph 136 of the report, there was a need, it was said, to comply in particular with NPPF paragraph 49, that there should be a speedy revision in order to comply with the requirements of the Government policy. Hence, as I have already indicated, the one-year instead of the usual three-year limit on the implementation of the permission. There is a considerable amount of learning in cases which have considered the circumstances in which it is appropriate to have regard to alternative sites. I have had cited to me a number of cases which set out the principles, albeit it is important to note that in many of them it has been emphasised that the factual circumstances of individual cases are vital in considering whether in an individual case there should be that consideration. Perhaps the most useful of the authorities is to be found in the decision of Carnwath LJ, as he then was, sitting in this court, in Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2010] 1 P&CR 19. That case concerned wind turbine generators, which have been a substantial source of cases coming to this court. Carnwath LJ considered the law. In paragraphs 14 and 15 of the case, he said this: "14. The cases reveal a long-running debate among planning lawyers (going back at least to Rhodes v Minister of Housing and Local Government [1963] 1 All ER 300) as to the relevance of alternative sites to the consideration of individual planning applications. There have been numerous examples of attempts to overturn decisions on the grounds that the decision-maker has refused permission on one site by reference to the merits of another; or alternatively has granted permission without regard to the merits of another. There has also been some debate as to how far, if alternative sites are deemed relevant at all, it is necessary for those relying on the argument to identify specific alternatives. 15. It is not surprising that such challenges have generally failed. Common sense suggests that alternatives may or may not be relevant depending on the nature and circumstances of the project, including its public importance and the degree of the planning objections to any proposed site. The evaluation of such factors will normally be a matter of planning judgment for the decision-maker, involving no issue of law." He then proceeded to refer to the matters relied on by Simon Brown J, as he then was, in Trusthouse Forte Hotels v Secretary of State for the Environment (1986) 53 P&CR 293. He emphasised the second of the principles to be applied, which was in these terms: SMITH BERNAL WORDWAVE "Where, however, there are clear planning objections to development upon a particular site then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it." [Original emphasis] Carnwath LJ in paragraph 17 of his judgment indicated that he had highlighted the words "relevant or at least permissible" and "relevant and indeed necessary", as referred to by Simon Brown J, because, as he put it, they: "...signal an important distinction, insufficiently recognised in some of the submissions before me. It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision-maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it." [Original emphasis] So in this case it must be shown that to consider Allington Lane a possible alternative was necessarily relevant to the decision which the Committee made. Whether it was necessarily relevant will, as I have indicated, depend upon a number of factors. One important factor that has been considered in many of these cases is whether the application in question is contrary to policy. Section 38(6) of the 2004 Planning Act clearly requires (and indeed it follows on from similar requirement in the 1990 Act) that the approach is plan-led, that is to say the provisions of a plan which was in force, even though out of date, is, unless material considerations point in another direction, what must govern the decision. Here, as I have said, there is no question but that the plan was out of date. Hence the NPPF, which is a material consideration, becomes of greater prominence and must attract greater weight. It is clear, in my view, that the officers were quite right, at least implicitly, in recognising that the proposed development is not only not contrary to the NPPF but was in accordance with the NPPF approach because it was sustainable and should in those circumstances be looked at on its own merits when considering whether the development should take place. Of course, if there is in any given case a clear indication that an alternative site is available, that is a factor to be taken into account. When I say clear indication, I mean, for example, where there is or it is plain that there will be an application in relation to another site. So much was apparent in one of the cases to which I was referred, involving the question as to whether there should be development on one side or the other side of a motorway. In fact there were rival claims in that particular case, and so it clearly was important that the merits of each had to be considered because it was obvious there was a true alternative site in issue. I do not need to refer to the case in any detail, simply to note that. That of course is not the be all and end all. But in this case the one thing that is clear is that the most that could be said of Allington Lane was that it was possible. No application has been made or is even intimated in relation to that particular site, and it is SMITH BERNAL WORDWAVE to be noted, as I have said, that such reports as there have been upon it have indicated that it was unsuitable. It seems to me that the approach in paragraph 118, namely that so far as applications rather than allocations are concerned there is no requirement for a sequential approach, is normally correct as a matter of law. The authorities make it clear that it needs some special factor which would mean that alternative sites would properly be taken into account. I suppose it could be said that the special factor here is first of all the size of this development, and secondly the existence of the process which had been begun involved in the local development plan. So far as the latter is concerned, that is a matter which can properly be considered on the ground of prematurity and was properly so considered. But it seems to me that the reality is that, once the Committee decided that prematurity was not a matter which in their judgment should prevent the grant of permission, then the existence of the possibility of Allington Lane (and it was no more than a possibility) was not in itself something which could reasonably be regarded as a bar to the grant of permission in this particular case. Indeed, as Mr Ash has submitted, if the Committee had refused permission purely on the ground that there was this alternative possibility, they would have been vulnerable to an appeal and to costs on the basis that such a decision would not in the circumstances have been a rational decision having regard to all the circumstances, in particular the need to commence to provide the necessary housing within the Council's area and the recognition that such information as was available did not indicate that there was any reasonable likelihood, indeed any reasonable possibility as things stood, that Allington Lane was a site which was likely to be one where such development could take place. It is I think, in the circumstances, necessary to put the whole of the officer's conclusions in context, because paragraph 270, to which I have already referred, must not be looked at in isolation. In 267, the officers note that the mixed use nature of the scheme is such as represent an accessible and sustainable proposal, would fulfil an economic role by expanding the quality and choice of housing, a social role by providing a clearly needed market and affordable housing together with social and community facilities not available within the existing village and, with mitigation, a satisfactory environmental role. It noted the core planning principles in the NPPF that planning should be genuinely plan-led; that there was a clear and reasonable expectation on the part of local residents who have been actively engaged throughout the history of plans for this site and the wider strategic development area; the future of the land would be established through the local plan process; and the scheme would amount (as I have already read from 270) to a significant proportion of the necessary housing provision within the Borough. But in 271 the officers expressed the view that the number of matters expressed above are essentially neutral in the balancing exercise required to be carried out in the final consideration of the proposal because of the mitigation involved in the section 106 agreement. They set out the benefits, and indicated in 274 that, although the NPPF endorsed the plan-led system, there was no adopted development plan that identified sufficient housing to meet the clear housing land shortfall. The national guidance encouraged every effort to identify and then meet the housing needs of an area, and the proposals would make a significant contribution towards meeting SMITH BERNAL WORDWAVE that need. Waiting for the emergence of a local plan would not accord with national policy. It was considered that the proposals represented sustainable development and that the adverse impacts of granting permission would not significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF as a whole. That seems to me, when looked at in the context of the overall facts in the case, to be an approach which cannot be criticised as being in any way unlawful. I take the view that the defendant's and interested parties' submissions that in effect to have relied on the alternative possibility of Allington Lane as a basis for refusing permission, having regard to all the circumstances in this case, would indeed have been a decision that could not conceivably have been upheld. In those circumstances, I am satisfied that even if there was a failure (and I do not accept there necessarily was) to leave it to the Committee to decide whether in the circumstances the possible alternative was a factor which should be taken into account, that could not conceivably have resulted in a decision which was to the contrary. The fact that there was no indication of interest in applying to develop on that site is a factor which can properly be taken into account. I am conscious that I have not dealt in this judgment with every detail that has been put forward. I have had regard to what is set out in the skeleton arguments on both sides. But it seems to me for the reasons I have given that the officers cannot be criticised for approaching the matter in the way that they have. In reality, in the circumstances of this case, it was appropriate to look at this, as indeed the objectors clearly did, on the basis that, albeit they said there were alternatives, in particular Allington Lane, nonetheless what mattered to them, and understandably mattered to them, was their concern that the issue should be dealt with by a public inquiry, at which their views could be put forward. Unfortunately, that has not been achieved. I say "unfortunately" advisedly, because clearly there is a lot of local feeling against this proposal. Nonetheless, I can only act if persuaded that there was an error of law. I am not concerned and cannot be concerned with whether the judgment or the merits of the case should have gone the other way. The role of this court is limited in the way that I have indicated. For the reasons that I have given, I am satisfied that there was no error of law in the circumstances of this case. Accordingly, this claim must be dismissed. MR ASH: My Lord, can I just mention three matters. The first is that your Lordship made a number of references early on to "Boorley Park", as opposed to "Boorley Green". MR JUSTICE COLLINS: That will be corrected in the transcript. MR ASH: The other, nothing really turns on it, but the examination to the local plan is already underway. It has started. MR JUSTICE COLLINS: I did not realise that. SMITH BERNAL WORDWAVE MR ASH: I did not mention it myself, I think my learned friend referred to it. MR JUSTICE COLLINS: I relied on Mr Edwards (Inaudible) it was next year. MR ASH: I think he did say that it had already started and there were various procedural matters that were being dealt with. MR JUSTICE COLLINS: I was talking about the hearing, which is of course what matters. MR ASH: But the hearing has already started. MR JUSTICE COLLINS: It has started, has it? MR ASH: Yes. The strategic locations topic is not going to be heard until early next year. MR JUSTICE COLLINS: I see. MR EDWARDS: I think my Lord, I did not say -- that was what I intended to say. MR JUSTICE COLLINS: I am sorry, I misunderstood. I thought you meant that the inquiry was not due to start. But I do not think it matters terribly. The important thing is that that particular aspect is not going to be considered until early next year. MR EDWARDS: Quite so, my Lord. MR ASH: My Lord, I do ask for costs, and I ask for the costs to be against both claimants up to their maximum cap. But I think that may be controversial, so I may have to make out my point in that respect, because the suggestion is that there should be an overall cap of £10,000 which would be the one applicable to the Parish Council. In my submission there should be costs awarded against both claimants. MR JUSTICE COLLINS: You mean each has an individual cap, and so you can get £15,000 instead of £10,000? MR ASH: Yes. MR JUSTICE COLLINS: Is that a point that has been decided at all? MR ASH: My Lord, not as far as I am aware, but I am happy to make it good. MR JUSTICE COLLINS: We had better have a look at the Rule, had we not? MR ASH: I have got it, unless your Lordship has it more readily accessible in another form, I have got both the Rules and the Practice Direction, which I can pass up, on a piece of paper. I can hand that up. MR JUSTICE COLLINS: If you have a copy that would be helpful. SMITH BERNAL WORDWAVE (Handed). I think this may be a novel point. MR ASH: My Lord, I have not printed out the whole of the relevant Rule, but just the bit that relates to Aarhus. Firstly 45.41 Rule: "(1) This Section provides for the costs which are to be recoverable between the parties in Aarhus Convention claims." Then lower down: "(1) Subject to rule 45.44, a party to an Aarhus Convention claim may not be ordered to pay costs exceeding the amount prescribed in Practice Direction 45. (2) Practice Direction 45 may prescribe a different amount for the purpose of paragraph (1) according to the nature of the claimant." Then if your Lordship goes over the page, we have the Practice Direction, and it says this: "Where a claimant is ordered to pay costs, the amount specified for the purpose of rule 45.43(1) is- (a) £5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person; (b) in all other cases [and that must mean in the case of any other claimants not in (a)], £10,000." Then the specific provision in relation to the defendant: "Where a defendant is ordered to pay costs, the amount specified for the purpose of rule 45.43(1) is £35,000." So it is plain that where an individual defendant is concerned, the maximum is £35,000. But it is my submission that where you have two claimants then they are vulnerable in costs up to the maximum of their cap. Now, my Lord, I do not know whether it is necessary for your Lordship to see a schedule of costs, but I believe that my learned friend or his solicitors have seen our schedule. MR JUSTICE COLLINS: I would be surprised if they could challenge -- assuming you are right on your submission that it can be up to £15,000 -- I would be surprised if they would be able to challenge that as an amount. MR EDWARDS: We do not challenge that. SMITH BERNAL WORDWAVE MR ASH: The schedule comfortably exceeds that. MR JUSTICE COLLINS: That does not surprise me in the least, and I do not think Mr Edwards is going to be able to suggest that he can get below £15,000, assuming that is appropriate. MR EDWARDS: My Lord, I do not seek to suggest. £15,000 is the appropriate cap, and we do not suggest that that level of costs has not been unreasonably incurred. MR JUSTICE COLLINS: Your submission, am I right, Mr Ash understands is that £10,000 is now the limit? MR EDWARDS: Yes. My Lord, we accept there needs to be an adjustment upwards to reflect the (Inaudible) involved and that appropriately would be £10,000. We would suggest, my Lord, in accordance with the spirit and intent of the Aarhus Convention where the Practice Direction refers to "a claimant" it is talking about the claimant collectively. MR JUSTICE COLLINS: I am not sure, because the whole purpose behind Aarhus is that individual claimants should not be prevented from access to the courts because of financial considerations. That is what lies behind it. Therefore surely one does focus, does one not, on the individual claimant. If you have -- not this case -- if you have for example three claimants who have slightly different matters which they want to emphasise and they decide that there will be three separate claimants, why is it not appropriate to regard each as being able to benefit from the relevant Rule, Rule 45, in order to enable them to get to court? Because after all, it has a damaging effect upon a defendant, does it not, because it means that in many cases -- not all, of course -- but in many cases a defendant is not able to recover, assuming he succeeds or it succeeds, the costs that have been properly incurred. MR EDWARDS: Yes, my Lord, I accept that. My Lord, I leave the matter there and I leave it to your Lordship's discretion. MR JUSTICE COLLINS: I am told, am I right, that this particular point no one has found decided in any case? MR EDWARDS: I have been told from behind by Ms Graham-Paul, who has much more experience of these kind of things than I do, there is no reported case on this, nor has the point been taken, as I understand it, in this way in any other case. MR JUSTICE COLLINS: Yes, but presumably some judge must have decided what order for costs should be made? MR EDWARDS: Not that we are aware of. Can I just take instructions? MR JUSTICE COLLINS: Yes, of course. MR EDWARDS: (Pause). My Lord, I have just been told that as far as my learned junior is concerned, and my instructing solicitors who are heavily involved in this type SMITH BERNAL WORDWAVE of litigation, they are not aware of any case where the point has actually been taken or decided. So it is a novel point. MR JUSTICE COLLINS: Yes, they are very experienced in this type of litigation, I know. I am just looking at the White Book to see if there is anything in the note. (Pause). No, it does not help, not in terms. MR ASH: My Lord, if need be I do have an authority on the broader principle in relation to the defendant and, in particular, authority which says in effect that a defendant ought to receive the reasonable costs of defending their position. I can certainly rely upon that as a broad proposition, which I would submit there is no reason why it should not apply in the case of Aarhus Convention cases. MR JUSTICE COLLINS: No, that is a general rule which clearly applies to all -- MR ASH: Perhaps I can hand that up to your Lordship, if that is not controversial. MR JUSTICE COLLINS: I do not imagine that is controversial? MR EDWARDS: Not at all. MR JUSTICE COLLINS: I am surprised that it needed authority to establish it. MR ASH: It was in the context of apportionment between various different defendants depending on the particular facts of the case. MR JUSTICE COLLINS: Yes, that is a question which will depend upon a number of factors, obviously what particular matters they were concerned about. If, for example, you have one defendant who is concerned specifically with a particular point, although will take others which are relied on more generally, but fails on that one ground, then clearly there is strong argument, or there may be a strong argument, that that defendant would not get a very great share of costs. But that is all a question of sorting out on the facts of an individual case. MR ASH: My Lord, it is a useful starting point when investigating the question whether, where you do have separate, as it were, claimants, the position of the defendant should be considered as well as the position of the claimant. The claimant is protected by the cap, as your Lordship has indicated, from having to incur prohibitive expense. MR JUSTICE COLLINS: Yes. Of course one matter one has to bear in mind is the Interpretation Act, which of course provides that the singular includes the plural. At the outset of the hearing, I allowed, there being no objection, Botley Parish Council, who were an interested party in this claim, to join as a claimant. They had made such an application. That has led to consideration of the correct approach, having regard to the fact that this has been accepted as an Aarhus claim so that CPR 45.41 applies. SMITH BERNAL WORDWAVE The position as directed is set out in the costs limitation in Aarhus Convention claims which has been applied for the purpose of this decision. That provides, as is well known, that a party to an Aarhus Convention claim may not be ordered to pay costs exceeding the amount prescribed in Practice Direction 45. It is provided that Practice Direction 45 may prescribe a different amount for the purpose of paragraph 1 according to nature of the claimant. The Practice Direction provides by paragraphs 5.1 and 5.2 that where a claimant is ordered to pay costs, the amount specified for the purpose of Rule 45.43(1) is (a) £5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person; (b) in all other cases, £10,000. The Botley Parish action group, which was the original claimant, it was regarded as an individual? MR EDWARDS: No, my Lord, it was not. As far as the protective costs order is concerned that is in place before the Parish Council was joined, that was given by Patten LJ in the Court of Appeal and was in the sum of £5,000. MR JUSTICE COLLINS: He decided £5,000. MR EDWARDS: That is page 194 in the bundle. MR JUSTICE COLLINS: I am not quite clear why he chose £5,000, or are you not a legal person? MR EDWARDS: I think it is because they were not a legal person, an incorporated association. MR JUSTICE COLLINS: There was at one time a rather curious decision by, I think, Auld LJ, which effectively ruled out claims by groups such as -- I always thought that decision was wrong, and I do not think it now -- MR EDWARDS: It is not now followed, my Lord. MR JUSTICE COLLINS: It has not been followed. Interesting, because they do not fall directly within the scope of the Practice Direction, do they? MR EDWARDS: My Lord, I had certainly understood that an unincorporated association such as Botley Parish Action Group would not be a business or other legal person, I suppose, which would then attract £10,000. MR JUSTICE COLLINS: They are not an individual, and if they are not a business or other legal person what are they for the purpose of the Practice Direction? MR EDWARDS: I think they are a group of individuals, I suppose. MR JUSTICE COLLINS: Anyway, I am obviously bound by what Patten LJ -- MR EDWARDS: My Lord, I think it is fair to say I was not there, but I think there was a debate (Inaudible). SMITH BERNAL WORDWAVE MR JUSTICE COLLINS: Well, no one was there -- MR ASH: There was. I was slightly greedier at an earlier stage, because the position, if I correctly recall in terms of numbers, was that there were three named individuals who were making the claim on behalf of, or acting for, the action group, and I sought to argue that the £5,000 cap should apply to those three individuals. During the course of that argument, I effectively conceded that the action group was not a legal person. MR JUSTICE COLLINS: I see. If one looks at the original claim, it was Botley Parish Action Group, an unincorporated association "by its representatives". There were four representatives. MR ASH: Perhaps even greedier than I thought. I argued in front of Lang J that each of those should be subject to a £5,000 cap, but accepted they were not a legal entity and therefore they would not be subject to the £10,000 cap. She rejected my argument that they should each be liable and imposed the £5,000 cap on that basis. MR JUSTICE COLLINS: Perhaps taking the view that in 5.1(a) the singular did include the plural, and where you have a number of claimants who were individuals, there was an overall limit for those individuals. MR ASH: I am not sure it condescended to that degree of legality. I think the proposition that was accepted was in effect they were suing as an individual. That is the way it was put. MR JUSTICE COLLINS: It was obviously right, because the way around that in any given case would be for them to choose one individual who would make jolly sure that he was going to be compensated so far as possible by the rest. MR ASH: I think that was the point that was put, that in fact it would have been perfectly feasible just to have had one person named. It was just circumstance that five were named. MR EDWARDS: My Lord, can I just perhaps be of assistance on one other matter? It was prompted by your Lordship's reference to the Interpretation Act. That caused me to look at the interpretation section in the CPR, and if your Lordship has the White Book. I will share a copy with Mr Ash in a moment, but it is paragraph 2.3(1) where a "claimant" means a person who makes a claim. MR JUSTICE COLLINS: Yes, I know, but that does not help. MR EDWARDS: I wonder whether it does help. MR JUSTICE COLLINS: That could mean persons who make a claim. MR EDWARDS: But there is obviously one claim, my Lord. In my submission, that rather lends support to the proposition -- SMITH BERNAL WORDWAVE MR JUSTICE COLLINS: Mind you, "claimant" means a person who makes a claim. I am not quite sure why it needed interpretation. MR EDWARDS: It is not rocket science, but it may have some assistance in this context. The simple point I make, these rather suggest that where you have a single claim then you treat two, three, however many claimants to that single claim as a single entity. MR JUSTICE COLLINS: One knows, as a matter of reality, that in I suspect 99 cases out of a hundred, perhaps even in a hundred, where you have a group of claimants who joined together because they all have the same interests, and effectively it is fair to treat them as one claimant. I think that is the approach that generally will be adopted. I think it is possible on the language of the Practice Direction in a given case: for example, I suppose one can envisage a case where claimant A is concerned with ground 1 and claimant B with ground 2, which is a possibility, and if they have separate grounds and effectively separate claims, or could be said to be separate claims, then it might be, although their claims are the same -- I appreciate they are not separate claims directly -- nonetheless it might possible in those circumstances to justify a cumulative decision. I do not know. MR EDWARDS: In my submission, my Lord, this is not that type of case. MR JUSTICE COLLINS: No. Anyway, since that was the decision made by Patten LJ, I am not going to go behind and I am not being asked to go behind it. As I have said, the Parish Council was added and there is no question but that they are a legal person. Accordingly, prima facie, they fall within the case where £10,000 is the appropriate cap. I should I think simply read in 5.1 of the Practice Direction: "5.1 Where a claimant is ordered to pay costs, the amount specified for the purpose of rule 45.43(1) is - (a) £5,000 where the claimant is claiming only as an individual and not as, or on behalf of, a business or other legal person; (b) in all other cases, £10,000." The countervailing benefit to a defendant is that he can never be ordered to pay more than £35,000 if he loses. The joinder of the Parish Council is accepted by Mr Edwards to raise the level from £5,000 to £10,000, since Patten LJ decided that the cap for the Botley Parish Action Group should be £5,000. The question before me is whether in the circumstances the cap should be the £10,000 for the Parish Council and in addition the £5,000 for the original claimants so that the total that the defendants can recover is £15,000 as opposed to £10,000. SMITH BERNAL WORDWAVE The purpose behind this provision is to enable, in conformity with the Aarhus Convention, individuals or other bodies to be able to bring claims which are covered by the Aarhus Convention without being prevented by financial reasons for so doing. It means under the relevant European provisions, the Aarhus Convention, that there be access without the possibility that the costs incurred if the claim does not succeed will be prohibitive. But, as it seems to me, the provision is aimed at individuals or at other legal persons individually and separately, and it seems to me that it is only fair, and one has to be fair not only to claimants but also to defendants, that the cap is considered separately in respect of each claimant. So far as the case where there are a number of claimants is concerned, the court can, and did in this case, take the view that effectively they should be treated as one. The claim as originally lodged, and indeed still existing, was in the name of the Botley Parish Action Group, an unincorporated association which is not a legal person within the meaning of the rule, but was claiming by four named individuals. I gather from Mr Ash that he submitted to Lang J that they should each be treated as liable to the £5,000 cap so that the total could be £20,000 since all four could be added together. That was rejected by Lang J. In my judgment, she was entitled so to do. One must of course bear in mind that the singular includes the plural, and so it is possible to construe 5(1) as £5,000 where the claimants are claiming as individuals. That may be appropriate in a given case - it may equally be appropriate if, for example, individual claimants are separate and maybe have separate points upon which they focus - to decide that each claimant should be looked at separately, and that the £5,000 cap should apply to each, and the same applies to legal persons and the £10,000 cap. But that will depend upon the facts and the circumstances of the individual case. I have no doubt that it is within the meaning of the Practice Direction entirely proper to consider the circumstances of each individual claimant. So here, it is appropriate to consider the approach that should be adopted in respect of each of the two claimants as they now are, bearing in mind, as I say, that the whole purpose behind the Aarhus Convention claims is that individuals or legal entities should not be precluded from legal challenges because of financial considerations. They should be kept at a low level. In the circumstances, I am satisfied that in this case it is appropriate to consider the liability of each separately. The £5,000 will of course apply to the original claimants, but in addition, in my judgment, it is appropriate to apply £10,000 to the Parish Council, so that the total that can be recovered by the defendant is £15,000, made up as to the £5,000 as against the original claimants and £10,000 as against the Parish Council. That should be specified in the order. Mr Strachan, unsurprisingly you are not making any application? MR STRACHAN: I do not think there is anything left in the pot for me to stand up for. SMITH BERNAL WORDWAVE MR JUSTICE COLLINS: First of all there is no money left, and secondly Bolton is rather against you. MR STRACHAN: There is Bolton I would have to deal with, but it is academic in the circumstances. MR EDWARDS: My Lord, I am grateful. Plainly the claimants will have to reflect on your Lordship's judgment. I understand, my Lord, if the matter is to go any further I formally need to ask this court first of all for permission. MR JUSTICE COLLINS: I think it would be sensible for you, because I am quite satisfied, I am afraid, that this is not an appropriate case to grant leave to appeal, if you wish to take it further you will have to apply to the Court of Appeal. MR EDWARDS: My Lord, can I make clear that that is both in respect of the substantive decision and the costs decisions. MR JUSTICE COLLINS: Yes. MR EDWARDS: I am grateful. MR JUSTICE COLLINS: Thank you both. 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