CO/1879/2005 
Neutral Citation Number: [2006] EWHC 1858 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Cardiff Civil Justice Centre  
2 Park Street
Cardiff
South Wales CF10 1ET  

Friday, 19th May 2006
 
B E F O R E:

HIS HONOUR JUDGE WYN WILLIAMS QC
(SITTING AS A JUDGE OF THE HIGH COURT) 
 
- - - - - - -
THE QUEEN ON THE APPLICATION OF FLINTSHIRE COUNTY COUNCIL
(CLAIMANT)

-v- 

NATIONAL ASSEMBLY FOR WALES
(DEFENDANT) 
and 

SCA HYGIENE PRODUCTS UK LTD
(INTERESTED PARTY)
 - - - - - - -
Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR GILES CANNOCK (instructed by Messrs Sharpe Pritchard) appeared on behalf of the CLAIMANT
MR R WILLIAMS (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
 - - - - - - -
J U D G M E N T
1.	HIS HONOUR JUDGE WYN WILLIAMS QC:  This is an application by Flintshire County Council for judicial review of the decision of the National Assembly for Wales by a duly appointed officer which was given in a letter dated 29th December 2004.  Permission to bring these proceedings was granted by Collins J on 29th April of 2005.  In order to understand the nature of the challenge to the Assembly's decision, it is necessary that I set out some background and that I gratefully do from a chronology prepared by Mr Cannock, counsel for the applicant.
2.	On 2nd April 2003, a company called SCA Hygiene Products UK Limited applied to Flintshire County Council for planning permission for construction of new converting facilities, offices, storage and circulation space and car parking within a site in Flintshire.  Approximately seven months later, on 12th November 2003, the Local Planning Authority refused that application for planning permission and gave its reasons in its refusal notice.  Very shortly thereafter, the applicant company sought to modify its proposals to take account of the objections raised by the Local Planning Authority.  It did so and submitted a further planning application on 14th November 2003.  I simply say for completeness that the application sought permission for construction of new converting facilities, offices, storage and circulation space and car parking at the site.  On this occasion, or rather in relation to this application, the Local Planning Authority did not issue a decision notice.  Accordingly, on 15th January 2004, the company appealed to the National Assembly, as was its right pursuant to section 78 of the Town and Country Planning Act 1990.  For the avoidance of any doubt, I record that the appeal was against the failure of the Local Planning Authority to determine the application submitted to it.
3.	On 21st January 2004, the Planning Inspectorate sent out a letter which confirmed that the appeal was valid and that the starting date for the appeal -- and the phrase "starting date" is one to which I will return -- was determined to be 21st January 2004.  In that letter also, a timetable was laid down for the submission of particular documentation.  Six days later, a second letter was sent out on behalf of the Planning Inspectorate.  The letter is dated 27th January and its terms are important in the context with which I am concerned.  A copy of that letter appears at page 356 of the trial bundle and I read substantially from it.  After a heading, it reads as follows: 
"I am writing to tell you that we propose to hold an inquiry into these appeals at 10.00am on Tuesday 27th April 2004 at a venue to be arranged.  We anticipate that the inquiry will last for one day.  We allow each party only one refusal of an inquiry date before we set a date, time and place for the inquiry.
"If you cannot accept the date offered you may agree a reasonable alternative with the other party.  The availability of the Inspector is a crucial factor in this process.  We will let you know whether we can supply an Inspector for any date you agree between yourselves but this date must meet with our general aim of deciding appeals quickly.  Any negotiation of an alternative date must be concluded within one month from the date of this letter.  
"You can reply to me by telephone or letter.  If I do not hear from you by Thursday 5th February 2004, I will assume that your proposed inquiry date is acceptable and that you are not intending to negotiate an alternative inquiry date with the other party.  I would be grateful if you would inform me of a venue where it can be held."
And then the last sentence is as follows:
"You should not assume that the inquiry date offered here is the one that will eventually go ahead.  We will write to you again to confirm the final arrangements."
4.	That was a letter addressed to the Director of Transportation, Planning and the Environment of the applicant council and it is clear from some handwritten notes on the copy to which I have referred that shortly after the receipt of the letter, an employee of the applicant authority had a telephone conversation with the person who had written the letter from the Planning Inspectorate.  I say that because there is a handwritten note to this effect:
"Inquiry scheduled for four days."
And then: 
"Phoned 4/2/2004.  Spoke to Claire Gavin [I interpose, she was the person writing the letter on behalf of the Planning Inspectorate].  Said we could confirm that Tuesday 27/4/2004 to Friday 30/4/2004 is OK with us.  She will write to appellant.  We shall hear from her again within two to three weeks."
5.	So, in my recital of the chronology, we have reached the stage where the letter to which I have referred was sent out and a telephone conversation about its contents had taken place between the applicant and the Planning Inspectorate.  On 9th February 2004, the Planning Inspectorate wrote again.  The copy of the letter to which I refer on this occasion is to be found at page 59 of the trial bundle and, again, it is a letter written by Mrs Gladding to the relevant department of the applicant county council.  Again, I read the substance of this letter: 
"I refer to my recent telephone conversation with Flintshire County Council.  You have discussed and agreed a mutually convenient date with the opposite party to hold an inquiry into this appeal.  The date you proposed are within ministerial targets which bind the Planning Inspectorate and therefore, as arranged, an inquiry has been fixed into this appeal.  It will be held, as agreed, on 10.00am on Tuesday 27th April at a venue to be confirmed.  I would be grateful if you could inform me of a venue where it can be held.  We will write to you again to confirm the final arrangements."
6.	The next step in the chronology of significance as follows is the 12th March of 2004.  On that date the Local Planning Authority confirmed that an appropriate inquiry venue was the Castle Suite, the Pavilion, Flint Leisure Centre.  On 29th March 2004, the Planning Inspectorate sent out letters, as I understand it, to both principal parties to the appeal, namely the company and the Local Planning Authority.  The copy of the documentation sent to the Local Planning Authority appears at pages 38 to 40 of the trial bundle. The letter begins with this sentence: 
"Here is a copy of the site notice giving the inquiry details."  
The letter goes on to say that the inquiry is scheduled to last one day but seeks clarification about whether that is an accurate estimate within five days of the receipt of the letter.  It then asks the Local Planning Authority to tell owners and occupiers near the site of the inquiry details immediately and it sets out various steps which the local authority are required to take in order to publicise the inquiry and to provide information about facilities at the inquiry.
7.	At page 40 of the bundle is a notice, to which reference was made in the first sentence of that letter, and, for those who are familiar with these documents, it is a notice in standard form, convening the inquiry, informing the parties and the public that the inquiry is to be undertaken by an Inspector and giving the time, date and place at which the inquiry is to be held and conducted.  
8.	On 19th April 2004, which was a period of eight days prior to the commencement date of the inquiry, the company and the appellant in the appeal process wrote a letter withdrawing its appeal.  On 22nd April, the Planning Inspectorate confirmed that the appeal had been withdrawn and that its file had been closed and, although it is strictly unnecessary for me to record this, I presume that the arrangements for the holding of the inquiry were cancelled.  The day after the confirmation that the appeal had been withdrawn had been communicated to the Local Planning Authority, it made an application for costs against the appellant company.  It did so by letter of 23rd April 2004 and it is in relation to that application that the decision letter of 29th December was issued.
9.	Prior to the issue of the decision letter, as I understand it, both the applicant in these proceedings, the County Council, and the company made written representations to the Assembly as to whether or not an order for costs should be made and it was in the light of those written representations that the decision letter was issued.  Before turning to the grounds upon which the decision is challenged, I shall refer to the letter itself.  It appears at pages 28 to 30 of the trial bundle and the substance of the reasoning which led the decision-maker to the conclusion which he reached is to be found at paragraphs 8 and 9 of the decision letter, coupled with the conclusion expressed at paragraph 10.  I should say at the outset that the decision-maker, Mr Jones, made an award of costs in favour of the applicant in these proceedings, the Local Planning Authority.  He did so, however, in a restricted sense.  He made the order so that it took effect from 1st April 2004, which he took to be three working days after formal notification of the inquiry arrangements.  That is a phrase to which I will return in due course.  In the context of this case, what it meant was that the Local Planning Authority was being awarded its costs between 1st April 2004 and 19th or 22nd April 2004, and probably the 22nd on reflection. 
10.	The Local Planning Authority felt aggrieved by this decision in this sense: it says, and I have no reason to doubt, that very substantial costs had been incurred prior to 1st April 2004 and it seeks to argue before me that the decision to limit the costs payable from 1st April 2004 onwards was a flawed exercise of the discretion conferred upon Mr Jones, the decision-maker, and flawed to such an extent that it became unlawful.  Having now, I hope, explained the chronological process leading to the decision under consideration and briefly described the decision itself, it is necessary for me to turn to the relevant legal background.
11.	The statutory framework in relation to orders for costs, at least so far as is relevant to this application, is firstly the Local Government Act of 1972, and it is sub paragraph 5 of Section 250, and it reads as follows:
"The minister causing an inquiry to be held under this section may make orders as to the costs of the parties of the inquiry and as to the parties by whom the costs are to be paid and every such order may be made a rule of the High Court on the application of any party named in the order."
As is clear from the section which I have just read, that is an enabling subsection.  It gives no clue as to how the minister should set about the task of deciding whether or not to make such an order.  To repeat, it simply empowers or enables the minister to make orders for costs in proceedings to which the section relates.  
12.	Section 322(A) of the Town and Country Planning Act 1990 is more specific to the situation with which I am concerned.  It reads as follows:
"This section applies where -
 (a) For the purposes of any proceedings under this Act:
 (i) The Secretary of State is required, before a decision is reached, to give any person an opportunity, or ask any person whether he wishes, to appear before and be heard by a person appointed by him; and
 (ii) arrangements are made for a local inquiry or hearing to be held; 
 (b) the inquiry or hearing does not take place; and
 (c) if it had taken place, the Secretary of State or person appointed by him would have had power to make an order under section 250(5) of the Local Government Act 1972, requiring any party to pay any costs of any other party."
And then, subsection 2:
"Where this section applies, the power to make such an order may be exercised in relation to costs incurred for the purposes of the inquiry or hearing as if it had taken place."
13.	It is clear in my judgment, and there is no dispute about it, that that section empowered the making of an order of costs in this particular case. 
14.	In order to seek to understand the basis upon which orders for costs are generally made, one has to look to guidance and the guidance in question is a ministerial circular which predates the existence of the National Assembly but which it is common ground is still to be treated as the governing guidance -- I say governing, I do not mean that in any technical sense, but the guidance to govern the decision-maker, albeit one appointed by the Assembly and after this circular was promulgated.  The circular in question is circular 8/93 and is headed "Award of Costs incurred in Planning and Other (including Compulsory Purchase Order) Proceedings". It is a long circular and contains guidance of general application but it also contains guidance which is specific to the issue with which I am grappling in this case.  Annex 2 is headed as follows: "General Procedural Requirements in Appeal Proceedings - Unreasonable Behaviour: Awards against appellants and Planning Authorities". The following paragraphs of this guidance appear to me to be germane, firstly paragraph 1:
"Costs will not be awarded simply because one of the principal parties to an appeal has asked to be 'heard'. Each principal party has a statutory right to ask for an opportunity to appear before and be heard by a person appointed by the Secretary of State. The exercise of that right will not, in itself, be regarded as unreasonable, even if the appeal could have been adequately dealt with by written representations and a site-inspection. However, once an inquiry or hearing has been formally notified, the principal parties will be at risk of an award of costs if their conduct in the proceedings is unreasonable." 
15.	As is to be gathered from that paragraph, the following parts of the guidance appear to be crucial.  The risk as to costs generally will arise after an inquiry has been "formally notified" and, secondly, such a risk will arise if the conduct of the proceedings has been unreasonable.  
16.	With those introductory remarks, I move to that part of the Annex which is headed "Withdrawal of an appeal resulting in late cancellation of an inquiry or hearing: section 322A of the Town and Country Planning Act 1990".  Although it is comparatively long section in the context of a judgment such as this, it seems to me that I do need to recite it since each of its paragraphs is in a sense dependent upon the one which precedes it.
"6. An award of costs may be made, in accordance with section 322A of the 1990 Act, against an appellant who withdraws his appeal at a time which results in the Department's late cancellation of an inquiry or hearing. However, this is not intended to dissuade appellants from pursuing, with the planning authority, a timely solution to the planning issues the appeal turns on.
"7. When the principal parties (the appellant and the planning authority) are initially notified that an appeal is to be dealt with by way of an inquiry, or hearing, they may wish jointly to ask that the appeal be held 'in abeyance', while discussions take place, and before formal arrangements are made for an inquiry date and venue. The Department may agree to this, and is likely to do so in an enforcement notice appeal, if a mutually acceptable outcome is anticipated.
"8. The principal parties may also jointly seek a postponement of an arranged inquiry (or hearing), to a later date, after the Department has formally notified them, and the planning authority have notified any other interested parties, about the arrangements. The principal parties may agree to pursue further discussions, notwithstanding the risk of a successful application against either of them for an award of costs under section 322A of the 1990 Act. (It is clearly preferable that the principal parties should discuss, if they wish, before such arrangements are formally made.) Exceptionally, the Department may agree to a joint request for a postponement after the inquiry (or hearing) arrangements have been made, depending on the particular circumstances. Where the parties can show that they co-operated in holding constructive discussions, it is not intended that the possibility of an award of costs, under section 322A of the 1990 Act, should arise at a later stage, if the discussions are ultimately unsuccessful and the formal appeal proceedings have to be resumed.
"9. If an appeal is withdrawn, without any material change in the planning authority's case, or any other material change in circumstances, relevant to the planning issues arising on the appeal, after the date on which the Secretary of State is subsequently satisfied that the principal parties had received formal notification of the arrangements for an inquiry or hearing, an award of costs may be made against the appellant, in accordance with section 322A of the 1990 Act. The date of receipt of the formal notification of the inquiry or hearing, after which the appellant will be at risk of an award of costs, will be taken as three working days after the date of posting of the Department's notification letter (to allow for first class postal delivery and receipt), unless it is subsequently shown that the notification was not received in that time. Any award would relate only to 'wasted' expenses incurred by the planning authority, and any interested third parties, in preparing for the abortive inquiry or hearing.
And then an example is given: 
"An example of a material change in circumstances which would be regarded as justifying an appellant's late withdrawal of an appeal is an agreed alteration to the proposed development, resulting from discussions early in the proceedings, which removes the authority's objections to the proposal, so that planning permission is granted for substantially the same development, whether conditionally or not. In any costs application, the planning authority will strengthen their case if they can show that they issued their statement or proofs of evidence promptly, and the substantive statement of their case was fully communicated to the appellant well before the appeal was withdrawn.
And then paragraph 10, which I read simply for completeness:
10. When an appeal is to be dealt with by way of an inquiry or hearing, the Department's practice is to forewarn appellants that, if they subsequently decide to withdraw their appeal, e.g. as a result of successful discussions with the planning authority, they should do so without delay, and if possible before arrangements are settled for the inquiry or hearing. Otherwise, they run the risk of a possible award of costs if they cannot show that a later withdrawal of the appeal was reasonable in the particular circumstances." 
17.	In my judgment, a reading of that guidance leads one inevitably to the conclusion that a distinction is being drawn between the initial notification that an appeal is to be dealt with by way of an inquiry (see paragraph 7) and the notification of the formal arrangements for that inquiry.  That, to repeat, is a distinction drawn expressly in paragraph 7 of the guidance and is repeated, at least by implication, in the way that the remainder of the guidance is drafted.  In my judgment, that leads me to the conclusion that the drafters of this ministerial guidance clearly contemplated that there would be stages at which the principal parties would know that an inquiry was to take place (for example, on a particular date) but the formal arrangements for the holding of that inquiry have yet to be undertaken and finalised.  In my judgment, no other reading of this guidance bears sensible scrutiny.  
18.	It is against that background, of course, that I must look at the relevant contentions in this case and, stripped to their essentials, they are as follows.  The Claimant argues that the formal arrangements for this inquiry were made in effect by letter of 9th February 2004, to which I have made reference.  In part of the claimant's case there is the suggestion that those formal arrangements were communicated by the earlier letter of the 27th January but, on analysis, Counsel for the claimant, quite properly in my judgment, recognised that he would have considerable difficulty in pursuing that argument and correctly focused upon the letter of 9th February.
19.	Counsel for the Respondent takes the view that the communication of the formal arrangements in this case took place by virtue of the letter of 29th March and its enclosure of the notice of the inquiry and he does so for the apparently simplistic, but nonetheless, in my judgment, powerful reason, that it was only by virtue of that letter and the notice enclosed therewith that all the necessary formalities for the holding of the inquiry were communicated to the parties.  If I return for a moment to the letter of 9th February, one will see, from a reading of it, that the venue of the inquiry has not been fixed and the letter actually ends with these two sentences: 
"I would be grateful if you could inform me of a venue where it [that is the inquiry] can be held.  We will write to you again to confirm the final arrangements."  
It does not seem to me that that letter could constitute the communication of "formal arrangements made for an inquiry date and venue", and there I am essentially quoting from paragraph 7 of the guidance.  Stripped to its essentials, as I have said, there is a complete absence of notification of a venue and, indeed, a clear contemplation that that is still to be decided and be determined upon.  That is to be contrasted with the terms of the letter of 29th March together with its enclosure which, it is common ground, gives all the necessary details as to date, time, venue and the like.  Accordingly, simply reading the terms of the Planning Guidance, I would reach the conclusion that the National Assembly's interpretation of it was correct; namely that, in order to communicate formal arrangements for the holding of an inquiry, one must communicate all the necessary formalities and that was not done in this case until the combined effect of the letter of 29th March and its enclosure.
20.	Counsel for the Applicant, however, attacks that process of reasoning on two bases.  One is a basis related to some Regulations issued in 2003 and the other relates to what he calls the common sense view of all this and that is a paraphrase of what he told me and not his precise phrase.  I turn firstly to the 2003 Regulations.  The Regulations in question are headed Town and Planning Country Appeals (Determination by Inspectors) (Inquiries Procedure) (Wales) Rules 2003" and clearly these regulations provide a code by which the procedure leading to and at inquiries is to be governed.  The particular regulations upon which counsel for the applicant focused were these: firstly, regulation 4, that is headed "Preliminary information to be supplied by the local planning authority". The substance of Regulation 4(1) is:
"The local planning authority must, on receipt of the relevant notice, forthwith inform the National Assembly and the appellant in writing of the name and address of any statutory party who has made representations to the local planning authority; and the National Assembly must, as soon as practicable thereafter, inform the appellant and the local planning authority in writing of the name and address of any statutory party who has made representations to the National Assembly."
21.	Counsel's focus was upon the phrase "on receipt of the relevant notice" and he focused upon it because "relevant notice" is defined within regulation 2 of the Regulations as meaning "the National Assembly's written notice informing the appellant and the Local Planning Authority that an inquiry is to be held."
22.	In short, his argument was that these regulations contemplate a communication or a notification of the fact that the inquiry is to be held.  That is the written notice to which reference is made in Regulation 4 and the notice for the purposes of Regulation 4 is to be equated with the phrase "formal notification" in Circular 8/93.  He does not suggest that one can read the two documents side by side in some literal way to arrive at that conclusion but what he says is that the circular must be read in accordance with the statutory instruments in force at any material time and when one does that in this case one reaches the conclusion that the relevant notice is to be equated with the formal notification.  He buttresses that argument by pointing to those parts of the Regulations which follow, for example Regulation 6, which are mandatory provisions which compel the local authority to provide statements of case and the like within specified time limits and he points to the fact that this means that the local authority has to undertake substantial work and therefore likely incur substantial expenditure.  He says that in that context it is right and proper to equate formal notification in the Costs Circular with the relevant notice since, after the relevant notice, substantial expenditure may be incurred.
23.	Counsel for the respondent placed his focus in the Regulations on Regulation 10.  It is not without significance, in my judgment, that that regulation is headed "Date and Notification of Inquiry" and I read the relevant parts of this regulation: 
"10(1) The date fixed by the National Assembly for the holding of an inquiry must be - 
 (a) not later than 20 weeks after the starting date unless it considers such a date impracticable; or
 (b) the earliest date after that period which it considers to be practicable."
24.	Before going on to deal with other aspects of the Regulation, that is an appropriate point for me to refer to the definition of the phrase "starting date", which appears in subparagraph (a).  Again, that is defined in Regulation 2 of the Regulations and is defined to mean this: 
"...the date of the - 
 (a) National Assembly's written notice to the appellant and the local planning authority that the National Assembly has received all the documents required to enable it to entertain the appeal; or
 (b) relevant notice." 
25.	Then I carry on in the regulations: 
"(2) Unless the National Assembly agrees a lesser period of notice with the appellant and the local planning authority, it must give not less than 4 weeks' written notice of the date, time and place fixed for the holding of an inquiry to every person entitled to take part in the inquiry."
Then (5): 
"The National Assembly may in writing require the local planning authority to take one or more of the following steps - 
 (a) not less than 2 weeks before the date fixed for the holding of an inquiry, to publish a notice of the inquiry in one or more newspapers circulating in the locality in which the land is situated;
 (b) to send a notice of the inquiry to such persons or classes of persons as it may specify, within such period as it may specify; or
 (c) to post a notice of the inquiry in a conspicuous place near to the land, within such period as it may specify."
And then finally:
"(7) Every notice of inquiry published, sent or posted pursuant to paragraph (5), or affixed pursuant to paragraph (6), must contain - 
 (a) a clear statement of the date, time and place of the inquiry and of the powers enabling the inspector to determine the appeal in question;
 (b) a written description of the land sufficient to identify approximately its location;
 (c) a brief description of the subject matter of the appeal; and
 (d) details of where and when copies of the local planning authority's completed questionnaire and any documents sent by and copied to the local planning authority pursuant to rule 6 may be inspected."
26.	In summary, Counsel for the Defendant's submission is that the Regulation 10 notification, if I can use that shorthand form, is to be equated with the notification of the formal arrangements for the inquiry in Circular 8/93, since it is only the Regulation 10 notification which contains all the material particulars as to date, time, place et cetera.
27.	Having given this matter careful consideration, I accept the submissions of the Defendant's counsel that it is the Regulation 10 notification which is to be equated to, if that is the correct phrase, the formal notification within the Costs Circular.  In my judgment, the phrase relevant notice, as it applies in particular within Regulation 4 of the Regulations, is much more akin to what the Costs Circular considers to be an "initial notification": see paragraph 7.  In my judgment, there is quite a close parallel to the regime as laid down in the Regulations, one of initial notification and formal notification, although those phrases are not used, and those processes which are set out in Circular 8/93 to which I have referred.  Accordingly, in my judgment, if the Costs Circular is read in the context of the 2003 Regulations, no different interpretation should be put on it to that which I have concluded should be put upon it in the light of its ordinary and natural meaning.  In my judgment, the two can be read wholly consistently in the way that I have sought to indicate.  
28.	That leaves the argument that common since dictates that a party should not be left in a position whereby it can incur substantial expenditure and yet not recover the same even though a party may withdraw from the appeal process late in the day.  In my judgment, that common sense approach should not lead to a different conclusion in terms of the interpretation of the circular to that which I have found to be correct.  I say that for this reason: the circular is guidance and I stress that point.  A decision-maker is to have regard to the guidance and will no doubt give it appropriate weight in the decision making process but, since it is guidance only, it does not follow that a decision-maker is bound to hold in any particular case that an order for costs should be made to run only from a date after the formal notification process of the inquiry has taken place.  That may be the decision-maker's starting point but it need not necessarily be his or her end point.  The decision-maker will no doubt take into account all the circumstances which are material before he or she makes his order, final conclusion or decision.  It therefore does not follow in my judgment that the interpretation I have placed upon this circular, and that which I have found the National Assembly was entitled to place upon it, necessarily means the costs incurred before a formal notification has taken place of the inquiry arrangements will never be awarded.  Whether or not they will be awarded will depend upon the particular circumstances of any particular case.  
29.	In the present case, Counsel for the applicant complains that the decision maker, in effect, slavishly followed policy considerations, as opposed to looking into the particular circumstances of this case, when making its decision.  In order to see whether that criticism is made good, it is necessary to return to the decision letter.  I have already indicated that the reasoning process in effect is to be found in paragraphs 8, 9 and 10.  They read as follows: 
"Although no reason for the withdrawal was given by the agents for SCA [which is shorthand for the company] in their letter to the Planning Inspectorate dated 19th April 2004, in their letter of 24th June, submitted in response to the costs application, the reason for withdrawal was given as:
'Against the background of inquiry preparations however, our client continued to review the commercial viability of proceeding with a scheme.  It became apparent by April 2004 that, even if planning permission was granted on appeal, the scheme could no longer be justified in commercial terms.  The delays arising through the local planning process have effectively rendered the project unviable.  There was simply no justification for our client to proceed with the appeal.  Accordingly, the appeal will be withdrawn.'
"9.  Paragraph 6(10) of Annex 2 to the circular made it clear that an award of costs may be made against an appellant who withdraws his appeal at a time which results in the late cancellation of the inquiry.  Furthermore, if an appeal is withdrawn without any material changes in the planning authority's case, or any other material change in circumstances relevant to the planning issues arising on appeal, after the date on which the Assembly is satisfied that the principal parties have received formal notification of the arrangements for the inquiry, an award of costs may be made against the appellant if it is concluded that the authority was unreasonably put to wasted expenditure."  
Then paragraph 10, Conclusions: 
"I have noted that the reason given for withdrawing the appeal, but there is no indication in the papers submitted with the appeal or in connection with the application for costs, that there has been any material change between the making of the appeal and its withdrawal in the circumstances relevant to the planning issues raised by the appeal.  In view of this, I do not consider the withdrawal of the appeal to have been reasonable and I am satisfied that this unreasonable behaviour caused your council to incur or waste expense unnecessarily.  In accordance with the advice in paragraph 9 of Annex 2 to the circular, I propose to award your council its costs incurred after 1st April, being three working days after the formal notification of the inquiry arrangements."  
30.	It is certainly the case, in my judgment, that the decision-maker appears to have adhered comparatively strictly to the advice contained within the circular and the decision letter itself does not give any clear indication that he took into account any other factors.  Having said that, there is no indication in the papers before me that there were any other important factors to which he failed to have regard in coming to his conclusion.  This is not a case where the applicant has come to this court and complained that the decision-maker failed have regard to points 1, 2 and 3 or had regard to points A, B and C, which were irrelevant.  This is a case in which the applicant has come to this court to complain that the decision maker misinterpreted a circular.  In that challenge, I have found that the applicant is not correct.  In those circumstances, it does not seem to me that it would be proper for me to embark upon a speculative process of considering whether or not the decision-maker had failed to have regard to material factors when exercising his discretion.  The plain fact is that, rightly or wrongly in my judgment, the applicant nailed his colours very squarely to the mast of arguing that the decision-maker had chosen the wrong date from which to make an order for costs because he had misinterpreted the circular in question.  In those circumstances, to repeat, it does not seem to me that it would be right for me to speculate about what may or may not have been other material considerations which could have been put before him.  
31.	Accordingly, it does not seem to me that there is any material upon which I can say that this decision-maker acted unlawfully.  In saying that, I mean that there is no material before me from which I could conclude that he had misinterpreted the guidance contained in the circular, misinterpreted the effect of the Regulation or acted unreasonably in the Wednesbury sense, or irrationally, if that is any different, in the context of the present case, and, for those reasons, this challenge must fail.
32.	MR WILLIAMS:  My Lord, I have an application for costs in those circumstances.  You will be pleased to hear that we have agreed a figure.  I hope a statement of costs has been lodged.
33.	HIS HONOUR JUDGE WYN WILLIAMS QC:  It has but at the moment I have mislaid it, but if you have agreed a figure.
34.	MR WILLIAMS:  We have agreed a figure and the figure is £6,345.55.
35.	HIS HONOUR JUDGE WYN WILLIAMS QC:  6,345? 
36.	MR WILLIAMS:  Point 55.  
37.	HIS HONOUR JUDGE WYN WILLIAMS QC:  Right OK.  I do not suppose you can object to that, can you? 
38.	MR CANNOCK:  No, I do not think those costs are in dispute.  I was just taking instructions as to whether the local authority needed 14 or 28 days but I think I am instructed 14 is OK, so, in those circumstances, no objection.
39.	HIS HONOUR JUDGE WYN WILLIAMS QC:  Right.  Well, I make an order that the applicant pay the respondent's costs in the sum of £6,345.55, that sum to be paid within 14 days of today's date and, although it will not be any consolation to your client, thank you for a very interesting argument.