CO/1414/2005 
Neutral Citation Number: [2006] EWHC 661 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Monday, 27 February 2006
 
B E F O R E:

MR JUSTICE OUSELEY 

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THE QUEEN ON THE APPLICATION OF

(1) TONY SPICE
(2) ANNE SPICE
(3)EDWARD SWEETING
(4)ANGELA SWEETING
(5)MICHAEL KELLY
(6)JAN DOHERTY 
(CLAIMANTS) 
-v- 

LEEDS CITY COUNCIL
(DEFENDANT) 
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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)
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MR G LAWRENCE QC AND MS R CRAIL (instructed by Chadwick Lawrence) appeared on behalf of the CLAIMANT
MR S SAUVAIN QC AND MR M CARTER (instructed by Leeds City Council, Legal Services) appeared on behalf of the DEFENDANT
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J U D G M E N T 
1.	MR JUSTICE OUSELEY:  In 1982 a small residential development was constructed around a cul-de-sac called The Laurels, in Gledhow, Leeds.  There was an irregularly shaped strip of land on the west side of The Laurels between the hard surface of the road and the boundary fence of a large house and its substantial grounds called Gledhow House.  The strip is, very approximately, forty metres long and varies between three and six metres wide.  This strip of land was adopted as publicly maintainable highway pursuant to an agreement made in 1982 under section 38 of the Highways Act 1980 between the developers and the predecessor Highway Authority to the defendant, Leeds City Council.  
2.	The final certificate of completion was issued on November 1984, and The Laurels, including that strip, then became a highway maintainable at public expense.  The surface of the highway, and therefore of the strip, is thus now vested in Leeds City Council as Highway Authority.  The subsoil of the strip belongs to the owners of Nos 1, 2 and 3 of The Laurels, which are the properties opposite or just to the south of the strip.  Each owner owns approximately one third of the strip.  The claimants in these proceedings are the current owners of Nos 1, 2 and 3, The Laurels.  
3.	The strip is densely covered in laurel bushes and has other trees on it.  It is maintainable at public expense, but in the past has not in fact, it seems, been maintained by the Highway Authority.  In 1998 and again in March 2004 the owner of Gledhow House sought planning permission to develop part of the grounds of his house, but withdrew the applications.  In November 2004 he made a further application for planning permission for residential development.  This was recommended for approval by officers of the Leeds City Council, but the City Council refused permission in July 2005 and there has been no subsequent appeal to the First Secretary of State.  
4.	The only access to the development in the grounds of Gledhow House, which the defendant would accept in principle, was across part of this strip.  Whether or not in order to prevent or to profit from such development, or for other legitimate reason, the claimants made a request to the defendant under section 117 of the Highways Act 1980 that the City Council apply to the Magistrates' Court under section 116 of the 1980 Act for an order authorising the stopping up of that part of the highway known as The Laurels, constituted by the strip, on the grounds that that part was "unnecessary".  
5.	In November 2004 the relevant officer recommended that that request be denied, and that recommendation was upheld by the relevant technical board in December 2004.  Following the grant of permission to apply for judicial review by Sullivan J in July 2005, and following amendments to the grounds of challenge, the Leeds City Council accepted that its December 2004 decision, denying the claimant's request, was legally flawed.  It accepted that it had failed to deal properly with the use, or absence of use, of the strip in question for passing and re-passing, and had taken account of an irrelevant factor, which was the erroneous possibility that seeking and obtaining a stopping up order could lead to a compensation claim against it by the owners of Gledhow House.  Accordingly, the City Council offered a quashing of its decision by consent.  But the claimants contended that, on the facts, the City Council was obliged to accede to the request and to make the application under section 116.  The claimants continued to pursue a mandatory order requiring the City Council to make the application.  That particular aspect is not pursued in the light of the City Council's indications as to what it would do and how it would reconsider matters if the claim were successful.  
6.	The claimants contend next, however, in amended grounds that the approach which the City Council intends to adopt in reconsidering the claimant's request, as evidenced by a new draft report (undated but produced around November 2005), would be unlawful.  It recommends taking into account immaterial considerations and pursuing an approach, it is said, contrary to the purpose for which the statutory powers at issue were given.  I now turn to those powers.
7.	It is necessary first to start with section 130 of the Highways Act 1980, upon which Mr Stephen Sauvain QC, for the City Council, put considerable weight.  It reads as follows: 
"130(1).  It is the duty of the Highway Authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the Highway Authority, including any roadside waste which forms part of it."
8.	Mr Sauvain drew attention to the inclusion within the scope of "highway" of roadside waste.  There is no very useful definition of a highway.  Section 328 simply says that, except where the context otherwise requires, "highway" means the whole or part of a highway.  
9.	Section 116 provides: 
"(1)  Subject to the provisions of this section, if it appears to a magistrates' court, after a view, if the court thinks fit, by any two or more of the justices composing the court, that a highway (other than a trunk road or a special road) as respects which the highway authority have made an application under this section-
 (a) is unnecessary; or 
 (b) can be diverted so as to make it nearer or more commodious to the public,
the court may by order authorise it to be stopped up or, as the case may be, to be so diverted."
10.	Mr Sauvain puts stress on the word "unnecessary" in that section.  He did so to highlight that it was for the Highway Authority to show that the highway was unnecessary.  It did not have to prove that it was necessary to keep the highway open.  These were words of emphasis and indicated what had to be shown and by whom.  It is clear that the power granted by the word "may" is only exercisable once the magistrates have concluded that the highway is unnecessary.  It is thus not an alternative power under which a necessary highway may be closed.  It is a power to refuse the closure of an "unnecessary" highway.  
11.	By section 116(3) an authority has to give notice of that proposal to the Council of the district in which the highway is, if it is in a non-metropolitan district, and to the Parish Council.  Section 116(3) provides that the application shall not be made if within two months from the date of the service of the notice by the Authority the District or Parish Councils have refused to consent to the making of the application.  This, in effect, gives those two Councils the power of veto over the continued pursuit of the application.  
12.	Mr Lawrence QC, for the claimants, indicates that the precise construction of that provision and the nature of the powers given to those authorities might one day be the subject matter of dispute.  I do not doubt what he says, but that matter is not before me today.  
13.	The procedure that the section 116 application envisages is that notices are required to be given by Part I of Schedule 12 to the Act of the intention of the Highway Authority to apply for the order.  The notice has to be given in a variety of ways, but specifically to the owners and occupiers of all lands adjoining the highway.  We need not be concerned for the purposes of this case with the particular provisions which apply to the giving of notice to statutory undertakers and the protections available for them in the event of the stopping up of a highway under which they have equipment.  Before the Magistrates' Court, the applicant authority can of course be heard, but so too can any person who uses the highway and any other person who would be aggrieved by the making of the order.  
14.	Section 117 provides: 
"117.  A person who desires a highway to be stopped up or diverted but is not authorised to make an application for that purpose under section 116 above may request the highway authority ... to make such an application; and if the authority grant the request they may, as a condition of making the application, require him to make such provision for any costs to be incurred by them in connection with the matter as they deem reasonable."
15.	It is not in dispute but that the powers in sections 116 and 117 can be exercised in respect of part of a highway, and can be exercised in respect of a strip of land such as the one with which I am here concerned.  The powers do not have to be exercised over a part or the whole of the highway over which members of the public in fact pass and re-pass.
16.	I should also refer to section 96 of the 1980 Act.  Section 96(1) provides: 
"Subject to the provisions of this section, a highway authority may, in a highway maintainable at the public expense by them, plant trees and shrubs and lay out grass verges, and may erect and maintain guards or fences and otherwise do anything expedient for the maintenance or protection of trees, shrubs and grass verges planted or laid out, whether or not by them, in such a highway." 
17.	It is evident from the powers in this section that the planting of trees and shrubs and the maintenance of guards and fences may in fact preclude any member of the public from passing or re-passing over any part of the verge in question.  There are other related provisions concerning plants in the highway.  I note in passing section 142 of the 1980 Act, which permits the highway authority to grant a licence whereby the owner or occupier of premises adjoining the highway can also plant and maintain or retain trees and shrubs in part of the highway, with the obvious impact which that may have on the physical ability of a person to use that particular part of highway for passing and re-passing.  
18.	I was referred to a number of cases which bear upon the exercise by the magistrates of their powers under section 116 for what light that might cast upon the powers exercisable by a Highway Authority under section 117.  Those cases were, first of all, Ramblers Association v Kent County Council [1990] 60 P&CR 464 (Divisional Court).  This case did not concern the stopping up of a part of the highway over which, in practice, the public did not pass.  But Woolf LJ and Pill J gave some guidance as to what was meant in section 116 by the word "unnecessary".  Woolf LJ said at page 471: 
"However, it may provide some assistance to magistrates in the difficult adjudicating task they have to perform under section 116(1) if I give the following guidance.  First of all I consider that magistrates, in deciding whether or not a highway is unnecessary, should bear in mind the question for whom the highway is unnecessary.  It is to be unnecessary to the public.  It is the public who have the right to travel up and down the way in question, and it is the public with whom the justices should be concerned because the right is vested in them.  It is for this reason that I drew attention to the somewhat different language in section 118.
The justices might ask themselves, in considering an application under section 116, the question for what purpose should the way be unnecessary before they exercise their jurisdiction.  So far as that is concerned, it should be unnecessary for the sort of purposes for which the justices would reasonably expect the public to use that particular way.  Sometimes they will be using it to get primarily to a specific destination - possibly here the shore.  Another reason for using a way of this sort can be for recreational purposes.
In my view, where there is evidence of use of a way, prima facie, at any rate, it will be difficult for justices properly to come to the conclusion that a way is unnecessary unless the public are or are going to be provided with a reasonably suitable alternative way."
19.	The Divisional Court was concerned in that case to exclude from the judgment of what was unnecessary, broader public interest considerations -- in that case, the interests of the Ministry of Defence in preventing people exercising rights of way across land regularly used as a firing range.  
20.	Pill J said, in a judgment with which Woolf LJ specifically agreed, that the effect of the order under section 116 was to extinguish a right enjoyed by members of the public -- a right of passage and re-passage over the highway -- which provided the context within which the magistrates' powers had to be construed and in which they had to consider the evidence when deciding whether a way could properly be said to be unnecessary.  The concept of expediency did not arise in an application under section 116.  It was not, he said, open to justices to decide that a way was unnecessary under section 116 because they held the view that it was in the public interest that the highway should be closed.  The question of whether a highway was unnecessary should not be decided, he said, "merely upon general notions of public interest in extinguishment".
21.	 I was also referred to what Collins J said in Westley v Hertfordshire County Council (unreported) 29 March 1995.  Here the question was whether a highway could be said to be unnecessary when it was used by someone for parking on it.  Collins J, again in the context of a stopping up of the whole of a highway, said that the question of whether a highway was necessary or unnecessary required the court to ask itself whether the highway was "necessary or unnecessary for the purposes of use as a highway, which is and is only used for passing and re-passing".  Mr Lawrence derived comfort from that, pointing out that that indicated that the only relevant consideration under the heading of "unnecessary" in section 116 was whether the land in question was used for passing and re-passing.
22.	I should finally refer to the decision in Maile v Manchester City Council [1997] 74 P&CR 443, in which Laws J considered section 116 in the context of an area of land crisscrossed by footpaths on a housing estate.  The Manchester City Council and almost all the residents were keen that some of the footpaths should be stopped up because they had become the haunts of drug users and the means of escape of criminals.  Mr Maile was concerned about the public rights of access.  
23.	Laws J found that the magistrates could legitimately take into account the use by drug dealers of the footpaths, and the almost universal desire of those living nearby to have the footpaths closed, in reaching their decision.  It is not entirely clear from his judgment whether he regarded those issues as going to the question of whether the highways were unnecessary, or whether as going to the power of the magistrates to order stopping up if the highways had been found to be unnecessary on some other basis.  He said this at page 451: 
"I do not detect any error in this approach. It seems to me to be consistent with the guidance given by Woolf LJ. I see no reason to conclude that in determining whether or not it is shown that a highway is unnecessary, a Magistrate acting under section 116(1) is not permitted to take into account surrounding social circumstances and considerations which may very well affect the motives and merits of either side of the argument. Section 116(1) confers, of course, no more nor less than a discretion in the court to authorise the stopping up of a highway. The discretion only arises if the court concludes that the highway is unnecessary. That being the position the court is not, in my judgment, limited to the bare question whether the highway is necessary or not necessary when it comes to exercise discretion. I repeat, it can, of course, only exercise it if it concludes that the highway is unnecessary."
24.	There appears to be, if I may respectfully say so, a contradiction within that paragraph in the reasoning of Laws J.  I think the more probable reading is that he accepted that the wider social concerns, and the almost universal desire of residents to see the footpaths closed, assisted demonstrating that the footpaths were unnecessary, rather than that they had been demonstrated to be unnecessary for some other reason, and these were matters which reinforced the conclusion that the stopping up order should be made.  The particular relevance for this case is the demonstration of the potential scope of the concept of "unnecessary" in section 116.  I turn now to the submissions.
25.	Mr Lawrence, for the claimants, put his case in two ways.  His primary contention was that the task of a Highway Authority under section 117 was to consider only whether the part sought to be stopped up was unnecessary for passing or re-passing of members of the public.  If the Highway Authority concluded, as he submitted it was inevitable it would do here, that the strip was unnecessary for those purposes, it had a duty to accede to the request and make the application.  Indeed, even if the Highway Authority concluded only that there was a good arguable case that the highway was unnecessary on those grounds, the Highway Authority had a duty to accede to the request.  
26.	At the Magistrates' Court, he then submitted, the magistrates would be entitled to look at a broader range of factors.  These were factors that did not go to the question of whether stopping up could be justified on the grounds that the highway was unnecessary; they went to what he described as the consequent discretionary power which the court had to authorise stopping up once it had concluded that the highway was unnecessary.  That discretion, he said, is conferred by the phrase "the court may authorise it to be stopped up".  Those factors which the Magistrates' Court could take into account were factors such as: safety, where, for example, the land in question was necessary to provide visibility at a junction or across a bend; amenity for highway users and perhaps others, which is the purpose underlying, at least in part, the exercise of powers under section 96; the actual and potential rights of third parties to use the strip, including the rights of an adjoining land owner to leave his property and access the strip.  That consideration could encompass both consideration of an actual planning permission to develop land which would require access over a verge, and consideration of potential applications for permission, which would have that effect.  Those factors, however relevant to the Magistrates' Court, could not be considered by the Highway Authority, however, in deciding whether to accede to the section 117 request.  
27.	The Highway Authority could not prevent the exercise of the discretionary powers by the magistrates, by refusing to accede to the request in the first place.  He supported that contention by identifying the stages of the procedure, that is to say, request; the proposal by the authority to make the application; the consequent giving of notice to other Councils and to land owners; and then the hearing.  He submitted that that structure indicated that it was not for the Highway Authority to consult those to whom notice was given, nor to take into account representations which they might make before reaching a decision on the request itself.  For it to do that would mean that it usurped the powers granted to magistrates.  It was not for the Highway Authority to bar the door to the Magistrates' Court by taking, in effect, a decision which Parliament had laid at the door of the magistrates.  The gatekeeping function was a filter and not an alternative means of decision-making. 
28.	His secondary contention was that, even if the Highway Authority could examine those factors at the stage of reaching a decision on the section 117 request, it could not do more than reach a decision as to whether or not the requesting individual had a good arguable case that the highway should be stopped up.  Once it had reached the conclusion that there was a good arguable case, taking all the matters in the round, it was duty bound to accede to the request.  It was duty bound to do so because it was envisaged by the Act that it would be the magistrates who would make the decision on whether the highway should be closed.  For the same reasons, the Highway Authority could not prevent the exercise by magistrates of their discretionary powers once they had concluded that the highway was unnecessary.
29.	Mr Lawrence suggested, after hearing the oral judgment, that I had not done full justice to his argument in that summary.  His skeleton argument contended that the Highway Authority could only refuse a request to make an application where the discretionary factors were "so powerful that the Authority can safely conclude that there is no reasonable prospect of the application succeeding" before the magistrates.  There may be a difference in emphasis between my summary and his skeleton but it is not one of legal substance.  
30.	Mr Lawrence made his submissions with his customary skill.  I do not, however, accept them.  First, it seems to me that the purpose of section 116 and 117 is quite other than that for which Mr Lawrence contends.  At root, his contention would mean that the Highway Authority could be compelled by magistrates against its will to close a highway which it regarded as necessary to maintain at the public expense.  
31.	Section 130, as Mr Sauvain rightly points out, gives the Highway Authority and not the magistrates the duty of enforcing public rights over highways.  What section 116 enables, where a Highway Authority wishes to close a particular highway or part, is an independent adjudication on whether its desire to cease to exercise its functions is in fact justified: is the highway "unnecessary"?  If so, should it nonetheless be kept open?  It enables those members of the public who are affected and who may have local knowledge to have their say.  It gives a veto over the application to other local authorities with local knowledge and representative interests.  It thus acts as a significant check on the closing of highways seen as unnecessary.  It is not a means of compelling closure of that which the Highway Authority itself says should remain open, whether "unnecessary" or not.  It does not compel the cessation of a duty; it can only prevent its cessation and the extinguishment of public rights.
32.	Section 117 should be seen in that light.  It permits others to ask an authority to make applications on their behalf, which the Highway Authority might very well otherwise not have made.  In one sense, section 117 is unnecessary because, if the Highway Authority seeks to close a highway as unnecessary, it can do so without section 117 at all.  Section 117 does, however, permit an authority to obtain financial assistance, guarantees even, from those to whom a closure is particularly beneficial.  This can arise where development, for example, may have made a highway redundant and the developer pays; it can happen where the Highway Authority is itself in agreement that the highway is unnecessary, is indifferent to the problems, arguments and costs of making the application, but is content to do so if funded.
33.	In each instance, however, whether initiated on behalf of someone else or of the Highway Authority's own motion and volition, it is the Highway Authority which seeks and supports the obtaining of the order closing the highway.  It supports the closure and its contention that the highway is unnecessary through the exercise of its own functions and statutory duty as a Highway Authority.  If Mr Lawrence's approach were right, a Highway Authority could find itself being told by magistrates that it should cease to exercise a function which it considers should continue to be exercised.  
34.	Second, it would also be put in the very curious position -- and would be here -- of making an application by way of complaint, and at the same time before the magistrates asking that the very complaint which it has made should be dismissed.  Mr Lawrence accepted that it would, in his scheme of things, be entirely proper for a Highway Authority to oppose the very application which it had made.  
35.	As Mr Sauvain rightly points out, this would also have the curious consequence that the Highway Authority had to maintain a case which it thought it was likely to lose, and put others to expense when it thought it should not do so.  
36.	If Mr Lawrence were right that a good arguable case sufficed to compel an application to be made when requested, there would obviously be a yet greater risk that the Highway Authority would obligated to make an application, the virtue of which it would deny, and to put for the adjudication of magistrates what it reasonably thought was the performance of its duty as a Highway Authority.  
37.	Third, it would be bizarre if the Highway Authority had to make applications on request, or if there were an arguable case, and were unable to exercise its own judgment to refuse to do so, when other authorities, which did not have its duty under section 130, could veto it. 
38.	Fourth, in deciding whether to make an application of its own volition under section 116, the Authority has to consider all the factors which would be relevant to the consideration by a Magistrates' Court of whether an order should be made.  I can see no rationale at all for limiting the Highway Authority to issues of passing and repassing and requiring it to ignore issues such as safety eg for visibility splays or potential development access.  This is especially so when it could express its views on those matters to the magistrates.  Any other approach to a section 116 application made by a Highway Authority of its own volition would be irrational.  I cannot see the rationale for a different approach by the Highway Authority in making a section 116 application on a request under section 117. 
39.	It seems to me that the question which is required to be answered under section 116, and hence to which the Highway Authority addresses its mind under section 117, just as it would address its mind when deciding itself whether to seek an order under section 116, is: what is the highway function being performed by that part of the highway which is the subject of the requested application?  Is it unnecessary for that function to be performed by that part or whole of the highway?  If the answer to that is that it is unnecessary for that function to be performed, the second question is: if it is unnecessary for the highway to perform those functions, are there any other reasons why a stopping up order should not be made? 
40.	In reaching a decision as to whether a strip of land is unnecessary for the performance of highway functions, of course the starting point is whether or not it is used for passing or re-passing.  But it would be a misconstruction of the totality of Highway Act powers to treat that as the exclusive scope of the relevant inquiry.  In considering whether the strip was unnecessary, it would be necessary to consider, in the case of land over which section 96 powers were exercised, whether it was performing an amenity or other function which required the trees or fences to be there, whether for amenity, verge protection or for some other purpose.  It could be necessary for the highway to perform a function in relation to safety or access for third parties.  Those, in my judgment, would all fall under the heading of "unnecessary".
41.	I do not see in the implicit discretion in section 117 any basis for the over-complex procedure or divisions which Mr Lawrence seeks to impose upon the statutory provisions.  Discretion there undoubtedly is in section 117, but expressed in the way it is, it is clearly a very broad discretion.  I see no reason to confine it to the question of whether a highway was necessary for the purpose of passing and re-passing.  On the contrary, it seems to me plain that the Highway Authority must consider all those factors which it is relevant for the magistrates in due course to consider.  
42.	I do not accept either Mr Lawrence's suggested division of factors into the right to pass and re-pass, as the exclusive scope of the concept of unnecessary, and all other factors as relevant to the exercise of a discretion, once a Magistrates' Court has found that there is no use of the land in question for passing and re-passing.  Such a division of factors is artificial and without statutory basis.  Visibility and safety are obviously relevant to whether a part of a highway is necessary.  The distinction between types of factors relevant to "unnecessary" and others, wherever the line is drawn, could not require a Highway Authority to ignore the others for the purposes of a section 117 request or any section 116 application.  What Mr Lawrence described as Chancery rigour, however welcome, is not a vehicle for false distinctions. 
43.	I do not consider that the power that the Magistrates' Court has to decline to make a stopping up order in respect of a highway which it has concluded is unnecessary, simply confers what might be described as a discretion, let alone a broad discretion.  What it does is confer a power to consider matters that go beyond the question of whether a highway is unnecessary, and enable it to take into account other matters and reach a judgment that an unnecessary highway should nevertheless not be stopped up.  But those considerations are considerations which the Highway Authority is bound to consider when it makes an application itself under section 116.  In my judgment, it should go through exactly the same process when dealing with a request under section 117.  
44.	I see nothing wrong at all and, by contrast, much to commend in an Authority seeking to ascertain what the reaction of adjoining land owners would be to any such application whether made of its own volition or on request.  To require an authority to go through a process, committing public time and money in the courts, risking the incurring of costs by private individual objectors, without having ascertained in advance whether they had an objection and, if so, whether it was a strong one, but instead requiring all to be dealt with at a Magistrates' Court hearing, seems to me to be unwarranted by any statutory provisions and sufficiently strange to require clear statutory provisions to justify it.
45.	Accordingly, I do not accept the submissions of Mr Lawrence.  I have to say I consider that, except for some tidying up in the grammar, the draft report to which I have referred evinces no error of law in approach.  Accordingly I reject the remaining grounds upon which this application is brought but quash the impugned decision on the basis of the grounds to which the defendant had previously indicated its consent.  That decision is the decision of the Development Technical Board of 8 December 2004, based on the report of 30 November 2004.
46.	MR SAUVAIN:  My Lord, Mr Carter has an application to make.  
47.	MR CARTER:  May it please your Lordship, it falls to me to deal with the question of costs.  The defendant would seek its costs in relation to the period from 4 August 2005, which is when it indicated it would submit to judgment in relation to the substantive decision.  My Lord, there has been an amendment to the costs schedule that has been prepared.
48.	MR JUSTICE OUSELEY:  I have not seen that.  
49.	MR CARTER:  My Lord, it has been handed in.  
50.	MR JUSTICE OUSELEY:  Have you seen this, Mr Lawrence? 
51.	MR LAWRENCE:  Yes, I have, my Lord.
52.	MR CARTER:  My Lord, the total sum claimed in respect of costs relating to that period is the sum of £16,754.35, the breakdown appearing prior to that in the document.
53.	MR JUSTICE OUSELEY:  That includes VAT, does it?
54.	MR CARTER:  My Lord, it includes VAT in relation to those items where it is properly applicable, which is counsel's fees. 
55.	MR JUSTICE OUSELEY:  Yes, Mr Lawrence? 
56.	MR LAWRENCE:  My Lord, I am in the position of not having foreseen that we would be in a position for your Lordship to give judgment and address the whole question of making a summary assessment.  It follows, I just mention, that I am not in a position to provide a similar schedule to your Lordship in relation to the costs incurred prior to the date in August mentioned by my learned friend.  What I would invite your Lordship to do in relation to that is to make an order for detailed assessment of those costs.  It is a question, in those circumstances, whether what your Lordship should do is deal with the costs following the August date now himself on a summary basis, or leave that to be dealt with as part of the detailed assessment.  There is here a conditional fee agreement of whose existence we of course gave notice at the beginning.  But we are not in a position to go through the detailed aspects of that before your Lordship this afternoon.  So I would invite you, in those circumstances, to consider simply sending all the costs away to be the subject of detailed assessment so that everything can be dealt with at one and the same time.  
57.	MR JUSTICE OUSELEY:  You do not oppose the order for costs in principle for the period after 4 August? 
58.	MR LAWRENCE:  Just give me a second, my Lord.
59.	MR JUSTICE OUSELEY:  That is what these are intended to relate to.
60.	MR CARTER:  My Lord, yes.
61.	MR LAWRENCE:  Can I just mention a point which may or may not bear on the costs question.  Ms Crail has just passed me a note to this effect, that your Lordship is not in a position to dismiss the application, as the original decision stands.  It is accepted that that has to be reconsidered in the light of the draft report, no doubt when finalised. 
62.	MR JUSTICE OUSELEY:  Quite right.  So I have to make a quashing order. 
63.	MR LAWRENCE:  Of course, we are still hopeful that the result of the reconsideration of the matter will be to accept our requests. 
64.	MR JUSTICE OUSELEY:  I think you are right on that.  You are quite right.
65.	MR LAWRENCE:  So that just needs tweaking when your Lordship approves the transcript.  But my learned friend has already accepted -- I mean, if we packed it in in August last year -- 
66.	MR JUSTICE OUSELEY:  Yes, it seems to me that the right order in relation to the proceedings is the decision of, whatever it is, quashed -- you can give me the date or the associate the date -- it is the December 2004 decision, is it not? 
67.	MR LAWRENCE:  Let me check that.  My Lord, we can submit a minute about that if that would assist, once we have seen the transcript.
68.	MR JUSTICE OUSELEY:  It is the decision of the Technical Board.
69.	MR LAWRENCE:  30 November 2004, our amended detailed statement of grounds, my Lord.
70.	MR JUSTICE OUSELEY:  What I have here is 8 December.  It is "the decision by the Development Department Technical Board that the stopping up order is not supported" -- I read from your chronology.  So it will be an order that the decision of the Development Technical Board dated 8 December 2004, based on the report of 30 November 2004, be quashed on the grounds referred to in the draft consent order.  
71.	There will be an order for costs in favour of the claimants up to and including 4 August 2005.  That is the date of the offer, and you are entitled for a week in which to consider.  You served the amended grounds claim on the 8th.  I think the point is -- you are entitled to a little bit of time to consider that.  We will say 8 August 2005, but the defendant is to get his costs of the service of the amended grounds.  So you get the costs you have incurred up to the 8th.  Thereafter, the defendant gets his costs.  They start on the 8th, but they are intended to include your service of amended grounds.
72.	MR SAUVAIN:  My Lord, I think our costs have only been calculated from the 16th, and we are content with that.
73.	MR JUSTICE OUSELEY:  All right.  Thank you very much.  Your costs from 16 August 2005.  On that basis, I think it is probably easier if they go off for detailed assessment as to what the break is. 
74.	MR LAWRENCE:  My Lord, thank you for that.  Two other matters, if I may, it is your Lordship's judgment, I do not have a detailed note of it, but there was one point about a third of the way through where your Lordship set out to represent the two alternative ways in which we put the case.  I am not for one minute suggesting that your Lordship's judgment was other than to reject both those ways, but I am not entirely sure that your Lordship fairly represented at that point the second alternative way of putting the case.  I wonder whether your Lordship would give us an opportunity just to -- going a little bit further than purely textual amendment -- to suggest how that argument was put by reference to the skeleton argument.
75.	MR JUSTICE OUSELEY:  I will look at it again in the skeleton argument.  I am not sure that it did not come down to exactly what I said.  But I will look at it again.  If you want to suggest some words -- 
76.	MR LAWRENCE:  Can I do so when I see the draft? 
77.	MR JUSTICE OUSELEY:  No, you can send it in to me and I will keep it with my papers.
78.	MR LAWRENCE:  Very well, because I can tell you now that it is set out in paragraph 34 of the skeleton. 
79.	MR JUSTICE OUSELEY:  If that is what you want, I will look at the judgment with paragraph 34 of your skeleton argument in mind.
80.	MR LAWRENCE:  My Lord, the other matter is simply to invite your Lordship to consider giving me permission to appeal.
81.	MR JUSTICE OUSELEY:  It is tricky that, is it not?  
82.	MR LAWRENCE:  This is a matter of some general public importance.
83.	MR JUSTICE OUSELEY:  No, I mean, you have won.
84.	MR LAWRENCE:  I know, but -- 
85.	MR JUSTICE OUSELEY:  You get these problems with this sort of case.
86.	MR LAWRENCE:  Are we stuck? 
87.	MR JUSTICE OUSELEY:  You are, I think.
88.	MR LAWRENCE:  There is it, my Lord.
89.	MR JUSTICE OUSELEY:  You will have to come back.  If you do not get what you want, you then have to come back and go through the process again, I am afraid.  It may not take very long for it to be said -- you might even be able to agree that your application for judicial review, or whatever it is, should be granted and dismissed so that you can then go to the court.  I think this is the problem -- I have come across it before -- you pursue a point -- 
90.	MR LAWRENCE:  I thought of it before and I had forgotten.  Your Lordship is quite right, and in any case we are obviously hopeful that, in the light of your Lordship's judgment, we are still in with a chance of persuading the Authority to accede to our request.
91.	MR JUSTICE OUSELEY:  They have not given a recommendation, have they? 
92.	MR LAWRENCE:  They have not done one or the other, and they will look at it as best and fairly as they can.
93.	MR JUSTICE OUSELEY:  All right.  Thank you very much.
94.	MR LAWRENCE:  Thank you, my Lord.