Case No. CO/4649/2011 
Neutral Citation Number: [2012] EWHC 2020 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Friday, 29 June 2012
 
B e f o r e: 

JOHN HOWELL QC 
(Sitting as a Deputy High Court Judge) 
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Between: 
THE QUEEN ON THE APPLICATION OF GAWTHORPE 
Claimant

v 

SEDGEMOOR DISTRICT COUNCIL 
Defendant 
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Mr Timothy Leader (instructed by Corran Carey Barrington & Sons Solicitors) appeared on behalf of the Claimant 
 
Miss Megan Thomas (instructed by Sedgemoor District Council) appeared on behalf of the Defendant 
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J U D G M E N T 

THE DEPUTY JUDGE:  

1. This is a claim for judicial review of the grant of planning permission by Sedgemoor District Council on 10 March 2011 in respect of land at the rear of Lanes of Cheddar, Station Road, Cheddar.  The permission impugned was for the erection of 14 dwellings, for the formation of an access to the land and car parking, and for demolition of part of a commercial unit on that land.  

2. Permission to make this claim was granted by Miss Geraldine Andrews QC, sitting as a Deputy Judge in this Court, on 18 August 2011.  She also refused the Claimant permission to impugn an earlier grant of planning permission on 8 May 2009.  That permission was for a similar development to the development for which the planning permission is impugned in this case, save that it provided for 11 rather than 14 dwellings on a somewhat smaller site.
  
Introduction 

3. The application site lies in centre of the village of Cheddar.  It is in the heart of a conservation area.  It comprises an industrial estate, to which access is gained off Station Road, the main route through the village centre.  It also contains, at its southern end, an undeveloped and unused area.  The access to the existing commercial premises is largely undefined, as are the parking and turning areas within it and for the Tesco Express store facing Station Road.  These areas are also used for casual parking by the public. 
 
4. Following the grant of planning permission in May 2009, the developer made a further application for planning permission on 13 January 2010.  

5. The development for which planning permission was sought involved the construction of a proper internal access road with defined parking and loading areas off it.  The new dwellings proposed were located in the underused rear area at the southern end of the site where, in addition, part of an existing commercial unit was to be demolished.  

6. After consultation with the public and other bodies, the application was initially considered by the Council's Planning Committee on 13 April 2010.  Consideration was deferred for further information to be provided on an Operators Manual, that the Highway Authority had requested, dealing with the management of commercial vehicles on the site.  

7. The original report to the Planning Committee in April 2010 and a further report dealing with the Operators Manual was submitted to the Planning Committee on 18 May 2010.  It was resolved, by 9 votes to 3, "to grant delegated planning permission subject to the prior completion of a supplementary legal agreement in respect of the Operators Manual and in respect of the RTL2 and RTL3 financial contributions".  

8. Mr Stephen Atkinson, who is the Council's Group Manager (Development) says that the Committee thus delegated to him the determination of the application and that he subsequently determined it.  It was Mr Atkinson who, on 7 March 2011, signed the notice of the grant of conditional planning permission which was issued on 10 March 2011. 

9. The summary reasons given for the grant of planning permission were as follows:

"The application involves the partial development of an industrial estate lying within a village centre and conservation area for a residential scheme of 14 houses.  The scheme will remove an unsightly industrial building plus unrendered concrete block enclosures and will screen views of the industrial estate from surrounding areas.  The proposed buildings will provide an improved streetscape and will not cause significant adverse impacts to residential properties.  The proposal also involves the improvement of the parking and turning arrangements within the adjacent yard [to the proposed residential development], which will aid pedestrian safety.  As such the application accords with policies STR4, H3, BE1, BE8, BE11, RLT2, RLT3 and TM1 of the Sedgemoor District Local Plan."

10. The Claimant is the owner and occupier of 3 Parson's Pen in Cheddar.  His home adjoins the southern part of the land in respect of which the planning permission which he now seeks to impugn was granted.  He is now a parish councillor.  His primary concern is with the traffic arrangements involved in the proposed development.  

11. On his behalf, Mr Timothy Leader now contends that the planning permission falls to be quashed on two grounds.  First, he submits that the Council failed to have regard to the fact that the land in question is likely to be (and indeed is) contaminated, and that it acted unreasonably in failing to impose to condition requiring a site investigation and a scheme of remediation to be carried out before the development permitted may be begun.  Secondly, he contends that the Council acted unreasonably in having regard to a planning obligation that did not impose immediately effective obligations with respect to delivery vehicles. 
 
Who took the relevant decision to grant planning permission? 

12. It is first necessary to mention a preliminary point that this case gives rise to.  Mr Leader submitted that the application was, in fact, determined by the Planning Committee on 28 May 2008, leaving Mr Atkinson the task only of satisfying himself about the terms of the planning agreement. On that basis, subject to whether the agreement required was completed and its terms met the problems it was intended to resolve, the focus of this application would be on the decision of the Planning Committee, not on what Mr Atkinson may have thought when he granted the planning permission impugned.

13. Mr Atkinson's evidence is that he treated the resolution as giving him delegated powers to determine the application if the agreement referred to was reached and that he did determine it.  It appears that some officers at the Council may have taken a different view of what the Committee had decided than Mr Atkinson apparently took, although Miss Megan Thomas, who appeared on behalf of the Council, suggested that Mr Atkinson did not mean to convey what his witness statement suggests.
  
14. As Mr Leader correctly accepted, what task Mr Atkinson had to perform is a matter that must be determined by the terms of the resolution which the Committee passed.  The minutes of the Planning Committee show that it did not simply adopt the recommendation in the report to it.   That recommendation was to grant planning permission subject to the prior completion of a supplementary legal agreement and subject to the 15 conditions set out in the report.  The agreement envisaged in the resolution did not embrace any reference to the Operators Manual.  The resolution passed was to grant delegated permission subject to the prior completion of a supplementary legal agreement, to which I have referred, including provisions in respect of the Operators Manual.  No mention was made of any conditions which might be attached to any such permission.  

15. The terms of the resolution are plainly unsatisfactory and its effect is equally plainly a matter on which there can be reasonable disagreement.  The Planning Committee evidently intended to confer power to grant planning permission if any agreement was completed.  It no doubt also intended that officers should exercise a judgment about whether the agreement completed was satisfactory.  But, in my judgment, the resolution cannot realistically be read as an instruction to grant planning permission subject only to officers being satisfied about the legal agreement envisaged. If that had been the intention, there would have been no reason for the resolution to have referred to delegation at all.  Moreover, and more significantly, it can scarcely be supposed that the Committee intended to instruct officers to grant permission in that event without, for example, imposing any conditions.  

16. In my judgment, therefore, on balance, the decision whether or not to grant planning permission, and, if so, on what conditions, was delegated to Mr Atkinson, albeit with a clear indication that the Planning Committee thought that planning permission should be granted if an acceptable agreement was concluded.  I shall, therefore, consider the case on that basis, although I shall also consider what the position would have been if the operative decision was that of the Planning Committee.
  
The contaminated land issue 

i.  background 

17. When consulted on the application, the advice of the Council's Environmental Health Officer was recorded in the Officer's report (which was considered by the Planning Committee at their meetings in April and May 2010).  It was as follows, so far as relevant:

"•   The site of the proposed development is located on the same site as a former works and industrial units and the land therein and close thereto may be contaminated.
 •  The applicant should carry out detailed site investigation, in line with current UK guidance, to determine the nature, extant and level of contamination, both in the soil and underlying geology and the application should not be determined until the results are known and the associated risks assessed.
 •  In cases were contamination is shown to exist, a detailed scheme showing the appropriate remedial measures to remove risks to future site users should be submitted and approved before planning permission is granted."

18. This advice appears to have replicated the Environmental Health Officer's advice in respect of the application which was subsequently granted planning permission in 2009.  In that grant the advice was then included as a note to the applicant, not as a condition imposed on the grant of planning permission.  Why no condition was then imposed has not been explained.
  
19. The advice given by the Environmental Health Officer reflected the guidance by the Secretary of State in Annex 2 to PPS 23. That advice recognises, as Miss Thomas pointed out, that the primary responsibility to deal with contamination issues is that of the developer.  But the advice given (at paragraph [2.33]) is that, where development is proposed on land that is or may be affected by contamination, an assessment of risk should be carried out by the applicant for the local planning authority before the application is determined; that any existing or new unacceptable risks should be identified and proposals made to deal with them effectively as part of the development process; and that local planning authorities should satisfy themselves that intending developers have addressed effectively the issue of potential contamination in bringing forward their proposals.  

20. The further advice (at paragraph [2.49]) is that:

"In determining applications, the local planning authority will need to be satisfied that development does not create or allow the continuation of unacceptable risk from the condition of the land in question."

	It is also stated (at paragraph [2.59]) that, where it is satisfied the development proposed will be appropriate having regard to the information currently available about contamination of any of the site and the proposed remediation measures and standards, the local planning authority shall grant planning permission subject to any conditions requiring such further investigations and remediation (including verification as would be necessary, reasonable and practicable).

21. In this case, the Officer's report recommended planning permission should be granted.  It proposed no condition relating to contamination.  It contained no explanation why the Planning Officer thought that that recommendation in the absence of such a condition was appropriate in the light of the Environmental Health Officer's advice and the Secretary of State's policy.  

22. There is no explanation in the evidence about what consideration, if any, was given to this issue by members of the Planning Committee at their meetings in April and May 2010; why this advice was not followed, or why a condition requiring investigation and any necessary remediation before the development was begun was not recommended or imposed.

23. Mr Atkinson has filed two witness statement.  In neither statement does he suggest that he considered the question of contamination prior to the grant of planning permission.  

24. It appears that the preliminary site investigations and analysis have, in fact, been carried out subsequently.  A report on these investigations, dated July 2011, states that it is not possible to make more than preliminary comments on the likelihood of remnant contamination of the site. But it states there is a risk posed by remnant hydrocarbon contaminates on the site and that it is likely that it will be necessary to consider either further environmental assessment or remedial measures to remove the risk.

25. On 8 June 2012, the owner of the land, EE Lane & Sons (Holding) Ltd, entered into a unilateral undertaking under section 106 of the Town and Country Planning Act 1990 that development under both the 2009 and 2011 planning permissions would not be begun until a site investigation had been carried out; any necessary remediation scheme had been prepared and approved by the Council; and any necessary remediation scheme works had been carried out or complied with to the Council's satisfaction.

ii.  submissions  

26. On behalf of the Claimant, Mr Leader submitted (i) that the site's potential contamination was a material planning consideration which the local planning authority was bound to take into account; (ii) that it had failed to do so or had failed to give any reasons why the Environmental Health Officer's advice had not been followed, supported as it was by the Secretary of State's planning guidance, and (iii) that it was unreasonable to grant planning permission without imposing a condition addressing the need for a site investigation and possible remedial matters in the circumstances. Mr Leader accepted that the unilateral undertaking now belatedly entered into provides at least the same protection as the condition which he contends should have been imposed.  In those circumstances, he realistically accepted that it would be futile to quash the planning permission on this ground alone but he invited me to grant a declaration that the decision to grant planning permission was flawed.  

27. On behalf of the Council, Miss Megan Thomas did not suggest that the views of the Council's Environmental Health Officer did not relate to a material planning consideration.  However, she submitted that members had had regard the views of the Environmental Health Officer, as they must be assumed to have read the report in which they were contained, and that it cannot be said that they were acting unreasonably in granting planning permission without imposing any condition dealing with contamination. She submitted (i) that members were entitled to place some reliance on the fact that any developer of the site would strive to avoid any potential and future claims from homeowners arising from any adverse effects of contamination and (ii) that there were alternative statutory means open to the Council under Part IIA of the Environmental Protection Act 1990 to secure decontamination of the land if contamination was found and judged harmful, and that (in accordance with the advice in Circular 11/95) a condition should not be imposed which would duplicate other controls.She also submitted that the fact that the owner's agents had tried to make contact with the Environmental Health Officer before the Committee considered the reports in April and May 2010 was a relevant background fact, although she accepted there was no evidence to show that members were aware of that fact.
  
iii.  Whether the grant of planning permission was flawed 

28. I accept that the Claimant has not shown that the Committee failed to have any regard to what the Environmental Health Officer had advised.  I am prepared to assume that they did indeed read the report written for them by the Planning Officer, and read it with care.  

29. But that, of course, does not mean that the Committee acted reasonably in resolving that delegated planning permission should be granted, without complying with the Secretary of State's guidance or imposing any condition in respect of that matter.  

30. Miss Thomas relied on paragraph 22 of Circular 11/95 which advises that a condition that duplicates the effect of other controls will normally be unnecessary, and one whose requirements conflicts with the requirements of other controls would be unreasonable. 

31. Part IIA of the Environmental Protection Act 1990 instituted a regime under which local authorities are responsible for causing their area to be inspected from time to time for the purpose of identifying contaminated land, and for the relevant enforcing authority in respect of such land to serve remediation notices on appropriate persons. Requiring a developer to investigate whether a site is contaminated and to carry out remediation before any development is begun is plainly not regarded by the Secretary of State, however, as conflicting with the advice in paragraph 22 of Circular 11/05.  On the contrary, in paragraph [2.12] of Annex 2 to PPS 23, the Secretary of State stated that in his view Part IIA of the 1990 Act "is not directed to assessing risks in relation to the future use of the land that would require a specific grant of planning permission.  This is primarily a task for the planning system, which aims to control development and land use in the future".  

32. Indeed, even in Circular 11/95, the Secretary of State had given more specific advice about contaminated land, indicating that conditions may be imposed in order to ensure that the development propose of the site would not expose future users or occupiers of the site to risks associated with contaminants present.  In particular, the advice at paragraph 75 of that Circular was:

"In cases where there is only a suspicion that the site might be contaminated, or where the evidence suggests there may be only slight contamination, planning permission may be granted subject to conditions that the development will not be permitted to start until a site investigation and assessment have been carried out and that the development itself will incorporate any remedial measures shown to be necessary."

33. That advice was, it appears, strengthened by PPS 23, which was issued in 2004.  That advice also makes plain that merely relying on a developer's own self‑interest to secure remediation (if required) before development is carried out is insufficient in the view of the Secretary of State.  In his view, planning authorities are expected to exercise the powers of development control vested in them to deal with contamination issues.  

34. It is plain that no reasons have been given why the Planning Committee or Mr Atkinson decided to proceed contrary to the advice of the Environmental Health Officer and the guidance of the Secretary of State. Planning authorities are obliged to give summary reasons for their grant of planning permission.  Those which I have set out above do not address this issue.  No complaint is made about that by Mr Leader, on behalf of the claimant.  But, in my judgment, the circumstances are such that no reasonable planning authority would have proceeded to grant planning permission without a condition addressing the contaminated land issues in the face of the advice of the Secretary of State and their own Environmental Health Officer absent a good reason for so doing.  None has been shown in response to this claim.  Accordingly, in my judgment, the decision to grant planning permission was unlawful and I will so declare.
  
The planning obligation ground 

i.  background 

35. Two of the points raised by the Highway Authority in its initial response to consultation on the application were (i) that it would be necessary to ensure that there were appropriate service areas to allow for delivery vehicles without prejudicing the safety of users, and (ii) that access might be restricted unacceptably if vehicles had to wait within the access road to load and unload.  

36. In its subsequent letter, dated 17 March 2010, the Highway Authority stated that the service areas might not constitute a safety issue if the operator of the site was content to have lorries loading and unloading on the access road but that it hoped that they would not do so.  It suggested that the production of an Operators Manual specifying how the site was envisaged to operate, that all operators adhered to, might be sufficient to overcome these concerns.  

37. Subsequently, in an e-mail on 8 April 2010, the relevant officer of the Highway Authority informed the Council that it had received a supporting statement (highways) from the developer which stated that an Operators Manual would be provided to instruct users of the site in the appropriate way for delivery vehicles to park and turn within the site.  The officer recommended that, if an appropriate condition was attached to the consent which would secure and enforce this document, the content of which should be approved by the local planning authority, then there would be no reason for the Highway Authority to have concerns.  At that stage, it is apparent that the Highway Authority had not seen the relevant proposals.

38. As I have mentioned already, the Planning Committee deferred consideration of the application for permission at its meeting in April 2010 for further information about the Operators Manual.  At its meeting in May 2010, it was provided with a report on it.  That report, which was produced by the developers, stated that:

"To ensure that the parking and residential areas can co‑exist Somerset Highways have suggested the preparation of an Operators Manual, enforceable, where possible, by the Landlord as a condition in any new Leases or Lease renewals and operating meanwhile on a voluntary basis, it being in the best interests of the 5 tenants to operate safely and efficiently.  (Lanes have agreed to the Manual being attached to their Lease as an enforceable condition)...
As the site owner is also the Landlord of the 5 businesses operating on the site he will be able to ensure that the regulations contained in any Operators Manual are included in any new Leases or renewals (immediately in the case of Lanes) and in the interim to ensure compliance on a voluntary basis it being in the best interests of the tenants to ensure that vehicle movements and pedestrian safely are operated in the terms of the Operators Manual."

	The report also set out what were intended to be the contents of that Manual.

39. The meeting of the Planning Committee on 18 May 2010 was attended by the relevant officer from the Highway Authority.  The Planning Committee were told by their own planning officer that an Operators Manual had been submitted and included within the updated report for the agenda and that the Highway Authority was happy with the information provided.  The Highway Authority's Officer addressed the Committee.  She did not indicate that the mechanism prosed for giving effect to the Manual would not be sufficient to meet the concerns of the Highway Authority.  As I have mentioned, the Planning Committee granted delegated permission subject to the prior completion of a supplementary legal agreement in respect of an Operators Manual.  

40. An agreement was subsequently entered into on 3 March 2011 with the owners of the site and with a subsidiary company of the owners, who are the lessees of part of it.  Clause 5 of that agreement provides:

"After the date of this Agreement in the grant of any new lease of a commercial unit within the Premises the Owners will include a lessee's covenant to observe and perform the restrictions and stipulations [which constitute, in effect, the Operations Manual]."  

ii.  Consideration 

41. On behalf of the Claimant, Mr Leader submitted that no reasonable authority could have been satisfied that such a mechanism for getting the tenants to comply with the Manual met the concerns raised by the Highway Authority and that it was, accordingly, unreasonable to grant planning permission.

42. In my judgment, that submission suffers from two main defects.  First, the Highways Authority's representative at the Planning Committee meeting was plainly aware of the mechanism proposed: it was contained in the report. She raised no objections to its sufficiency.  Secondly, the Committee were entitled to take an overall view of the highways/road safety issues.  They were entitled to take into account the advice that the proposal involved the improvement of parking and turning arrangement within the area, aiding pedestrian safety. The fact that further improvements make take some further time to secure does not, in my judgment, make it unreasonable to proceed with a scheme that is, on balance, in the planning authority's view, beneficial.  For those reasons, this ground of challenge, in my judgment, fails.

MISS THOMAS:  My Lord, in that case, you should have had a summary assessment of costs.  I do not know whether you have that to hand.
THE DEPUTY JUDGE:  I will in a moment, if you give me a second to find it.  
MISS THOMAS:  I also wanted to hand up a copy of a without prejudice letter save as to costs.  First of all, just looking at the costs, they are summarily assessed at a grand total of £11,937.50 from the defendants.  Do you see that, my Lord?  Then I have, though, noticed that it does not include VAT and counsel's fees but I understand the local authority gets that back, so I thought it was fair to deduct that.
THE DEPUTY JUDGE:  I have not brought my calculator into the building.
MISS THOMAS:  One gets £10,820.
THE DEPUTY JUDGE:  You are applying for that amount of costs?
MISS THOMAS:  Well, I wait to hear what my learned friend says but I would like just to take you to a letter that was put in as well.  You will see there that on 29 May the group manager for legal services at Sedgemoor wrote to the solicitors on behalf of the claimant and pointed out that there was little prospect of success and that costs would obviously rise rapidly and, in the circumstances, the council would invite the client to withdraw the application and, if it was willing to do so, the council would have taken a third off the council's costs to date.  
So what we had here, I think, was an application which was made on the basis of four grounds which we came to fight.  So there was the contaminated land issue, there was the highway safety issue, there was the section 106 issue and there was what I called the legitimate expectation issue, which was not dropped until we saw the skeleton argument of the claimant 3 weeks before this date, so around about the start of June.  So on that basis, I think these are a very modest amount of summary costs and I would like to apply for all of them because we have prepared a case, in the main, to answer those four grounds of challenge.
THE DEPUTY JUDGE:  I think the unilateral undertaking was entered into after the time for accepting the offer in this letter, was it not? 
MISS THOMAS:  Yes, the actual signature was, that is correct, although I have to say we did consult the claimant about it and ‑‑ 
THE DEPUTY JUDGE:  I appreciate you gave them the opportunity to comment about the content.
Mr Leader?
MR LEADER:  My Lord, in local government circles, when one is doing what is described as performance management, the question is often asked what does success look like, and from the point of view of both parties, I suspect the answer is not what either has achieved, in this sense: the council has avoided having a decision quashed but they have been found to have acted unlawfully, so that the challenge launched by Mr Gawthorpe was a proper one and it has only been frustrated in the sense of him not achieving a quashing order by a very recent and sensible action on behalf of the local planning authority in executing the planning obligation, which overcame the error that Mr Gawthorpe complained of when he brought this claim.  So the fact that the council escaped a quashing order is one that they deserve to be commended on because of the action it took, but it does not negate the proper action taken by Mr Gawthorpe, or indeed nullify the fact that he has achieved a remedy in this court and one that he may legitimately say vindicates his action to some extent.  
Now, that presents a problem for both parties because I suppose I have to concede that my learned friend has also succeeded in beating me on the other points but to some extent it is what might be described as a score draw, to put it colloquially.  Now, I say a score draw because, of course, one of the points I came here to argue today was the assertion that the advice of the highways officer amounts to a concession that this scheme would cause harm and that advice has not been listened to, not addressed and, accordingly, the council acted unreasonably in not following it, or at least, again, giving reasons as to why they should not.  
Now, that ground was cut from under me this morning by the late production of relevant evidence, and I can make no proper complaint about its introduction because we are here to do justice, not win by any means, but, my Lord, my submission is that all of the time spent by each of the parties in developing that ground has been needlessly incurred because had the pre‑action protocol letter response produced that piece of information, then the claimant would have really had to stop dead in its tracks.  So if one looks at this claim in this way, you have a declaration in relation to the first ground and the late cutting of the second ground from under the claimant's feet on a basis that ought to have been disclosed.  We then go to the fourth ground.  It is true to say, as my learned friend does, that the legitimate expectation point has not been pursued before this court.  It has not been pursued before the court because, as I said in my skeleton argument, once Mr Atkinson's first witness statement was delivered to the claimants, it was quite clear that that ground was unarguable.  Now, my Lord, at page 127 of the bundle, we have the response to the claimant's pre‑action protocol letter and, at page 129, we see the response to the fourth ground of claim, which was the breach of legitimate expectation point, and what it baldly asserts is that all agreed heads of term were contained within the application file, to which the claimant had access.  Well, that may be true, in fact it is true, but it is also, I think, fair to observe, if one goes to Mr Atkinson's witness statement ‑‑ I do not intend to take you there, it is my learned friend's C at 125 ‑‑ the grounds of resistance to this claim, as embodied in Mr Atkinson's witness statement, were amplified to a considerable extent in a way that, again, had it been made plain in the response to the pre‑action protocol letter, the extent to which the council was able to contest that ground, my submission is, as I think is evidenced by the approach that we have taken in the skeleton argument, that ground would not have been pursued, indeed I wonder whether the judge granting permission would have allowed us to pursue it any further than that if Mr Atkinson's evidence had been provided in response to that protocol letter.
So where we get to is that a quashing order is avoided because my learned friend fairly and squarely beat me on the third ground, on the planning obligation point.  So what I say is this: a fair disposal of the costs point is no order for costs.  Both parties have won points, both parties have lost points or succeeded because of actions taken belatedly.  I do not suggest for one minute that the without prejudice letter save as to costs dated 29 May 2012 was not in some respects quite well judged but my learned friend cannot say we should have put it out there and then because what the defendant might have offered is a concession that, actually, we all succeed on the contaminated land point but be careful because if you take this to the court we will be arguing that the most you can secure is a declaration.  If that had been put to us and we had have had the letter from Miss Vittery that we received this morning, or rather ‑‑ yes, it was from Miss Vittery to Mr Atkinson's PA ‑‑ my Lord, that would have gone also directly to the question of whether my third point would have succeeded.  Of course, what your Lordship noted in his judgment was that the reasonableness of otherwise of the obligation failed to be judged in parts by the fact that Miss Vittery had told members, and officers it seems, that the Operators Manual was sufficient to overcome their concerns.
So, my Lord, seen in the round, my primary submission is a fair disposal is one in which there is no order for costs but if your Lordship is against me on my primary submission, what I ask your Lordship to consider, please, is awarding costs on the basis of point 1 and points, effectively, thrown away because of the late production of what might be described as killer evidence in court today.  So if your Lordship is against me on no order of costs, what I would ask for, please, is that the defendant should receive only those costs that they contributed to ground 3.  Ground 1 ought not to be the subject of costs against the claimant because, effectively, the claimant won.  Ground 2 ‑‑ 
THE DEPUTY JUDGE:  Sorry, I am going to lose track of which grounds are which.  Ground 3 is the section 106.
MR LEADER:  Yes, but I lost that, my Lord.
THE DEPUTY JUDGE:  So if I were to make  a split order, what you are saying is that the council should have costs of the section 106 point.
MR LEADER:  Yes.
THE DEPUTY JUDGE:  Now, so far as ground 1 is concerned ‑‑  
MR LEADER:  I say I should have those costs, and your Lordship should have received our summary schedule, I hope.
THE DEPUTY JUDGE:  No, I have not.
MR LEADER:  I know it was sent, my Lord.
THE DEPUTY JUDGE:  Whilst someone is looking for it, so far as the other two grounds are concerned ‑‑ 
MR LEADER:  Yes, well, I say on the second ground, my Lord, there should be no order for costs or that the claimant should get their costs.  Then on the final ground, which is the legitimate expectation point, my learned friend did not have to address it in her skeleton argument, my submission is that there should be no costs awarded in relation to that point but I appreciate, my Lord, that there is an alternative view and no doubt my learned friend will advance that.  So, no order for costs or, alternatively, a split order.
THE DEPUTY JUDGE:  You say you have a schedule?
MR LEADER:  Yes, I will hand it up.
THE DEPUTY JUDGE:  Have you both had an opportunity to look at each other's schedules?
MR LEADER:  Yes, and I have got no quibble with my learned friend's costs, my Lord.  
MISS THOMAS:  No, I do not have problem.
MR LEADER:  Both are agreed, my Lord.  (Handed).
THE DEPUTY JUDGE:  You have got a VAT problem as well, I think.
MR LEADER:  I have got VAT taken.  No, Mr Gawthorpe is not VAT registered, my Lord, so we should not claim VAT.
THE DEPUTY JUDGE:  Miss Thomas, do you want to say anything in reply? 
MISS THOMAS:  Yes, if I could, just two points.  First of all, of course, we have had no prior indication at all other than from this morning that my learned friend was going to apply for a declaration, that was not part of the claim, and when we put the letter in on the 29th, saying, look, we have obviously covered this contamination point, at that point, obviously, he could have said we are going to try for a declaration instead and we could have taken a view about that.  So that is the first point, at the end of the day one has to be able to ‑‑ we came to court prepared to argue that and it is only fair that we should ‑‑ you know, as the case changed, we had already incurred the costs of doing that.  But, in any event, you have got that point, my Lord.
The second point is this: that in terms of the highway point, the highway safety ground, in a way, if you look at my learned friend's skeleton argument on that, he was taking two points, first of all that the council failed to take any proper account of the risks that the access arrangements posed to the safety of vehicles and residents, and, secondly, that the decision to grant in the face of unresolved objections was unreasonable.  So, clearly, there were two limbs to that.  Now, first of all what I say is that we served evidence to meet those two limbs.  In respect of an extra email that went in this morning, that was really a matter of just crossing the I's and dotting the T's because Mr Atkinson's witness evidence clearly said it was his understanding that the Highways Authority had agreed on that.
THE DEPUTY JUDGE:  I think you want to be careful, Miss Thomas, because he gave no basis for that understanding.  The council's solicitor, in the letter which I referred to this morning, did not refer to this at all, there was not any communication at all from the county council saying that they were happy at any stage.  They appear to rely simply on the fact that the plan had been amended by the developer's architect to meet the county council's concern.  Whether it did or did not is another question.  So there is that.  What is somewhat surprising, leave aside what search was actually made for any email traffic which has now came to light, is that one obvious way of dealing with the point that the county council's concern had not been resolved by that plan would have been to go and get a witness statement from the county council at the outset saying "oh yes it was", and no doubt if you had gone and asked Miss Vittery at the outset what she was asked only very recently in an email, you would have got the answer.
MISS THOMAS:  Yes, although the point was not raised in that way initially but I hear what you say and I am not sure it is worth taking it any further but the point is this: that, really, the highway safety ground we had to address in any event, certainly the first limb, which is about that, and if I could just reiterate that we have had to answer four grounds, we have come prepared up until the skeleton to do that, dropped one and fought three and we have very modest costs just at £10,000, which is very modest for a full‑blown judicial review, I would like to say.  So, if anything, a reduction of a quarter is fair to take off one of the grounds and I think that would be fair and my solicitor, I think, would be very content with that.
THE DEPUTY JUDGE:  The normal rule in cost matters is that costs follow the event.  The difficulty in this case is to determine precisely what the event is.  

The position is that, in the light of the judgment that I have given, I would have quashed the planning permission but for the fact that a unilateral undertaking was entered into on 8 June 2012.  As a result of that, I have granted a declaration.  Accordingly, had the hearing taken place on 7 June, the claimant would have won and, prima facie, subject to any other arguments, he would have been entitled to his costs.  It is true that on 29 May 2012 the council wrote a letter without prejudice save as to costs inviting the claimant to withdraw the claim in the light of the draft unilateral undertaking, an offer which was open for 10 days. But in the event, of course, the unilateral undertaking was not entered into within that period and it would, in my judgment, not have been unreasonable for the claimant to at least have awaited the actual entry into the unilateral undertaking before considering withdrawing his claim on that ground.  Had he withdrawn within the timescale proposed, there might, of course, have been a risk that the unilateral undertaking might not have been entered into.  Of course, the contaminated land was not the only issue in this case.  The judgment which I have delivered also deals with one of the three other issues which were initially raised, that dealing with the section 106 agreement.  On that particular issue, the claimant has lost.  There are two other arguments which originally were raised: one about legitimate expectation, which the claimant only dropped with the delivery of his skeleton argument;  the other was concerned with highway safety, the burden of which was that there were serious highway issues concerned with the problems of the absence of a turning area for cars, which would cause them to reverse round a blind bend, as I understand it.  The claimant contended, amongst other things, that that concern had been raised by the County Highways Authority and that they would not have been satisfied with the safety of the arrangements unless that issue had been resolved, and there was no evidence that County Highways Authority had accepted that it had been resolved.  
The difficulty with that is that, when Mr Atkinson filed his witness statement in this case, he said that at the time of the committee's decision the Highways Authority had received the relevant plan.  That does not mean, necessarily, that it agreed it.  He then said that at the date of the issuing of the planning permission, he understood that they were happy with it.  He gave no explanation in his witness statement why he understood that to be the case.  A letter from the council's solicitor on this point had, in fact, referred simply, it would appear, to the fact that the plan had been amended by the developer's architects to say that it met the Highway Authority's concerns as forming the basis of that understanding.  I have no doubt that the developer's architects thought that the concern had been met.  Whether it had been met was, of course, another issue because the fact that one may provide a turning area may involve other changes to the layout and have other consequential effects which may not be acceptable.  That would be something that the authority would need to look at.  Rather surprisingly, no effort appears to have been made to contact the county council to find out what their view at the relevant time was about this plan until an email was sent at 9.00 am on 28 June 2012 to the relevant Highway Authority officer, who promptly responded saying, in fact, that she had emailed Mr Atkinson's personal assistant with the position back in April 2010; she enclosed the e-mail which set out the position quite clearly that the arrangements were satisfactory to the Highway Authority at the time.  Had that inquiry been made earlier, no doubt that particular ground would not have been pursued by the claimant, since it was, effectively, based on what the Highway Authority had said and the fact that it appeared that they had not endorsed the solution which had been put forward to it.
So the position on the four issues, in summary, it seems to me, is that the contaminated land issue is an issue on which the claimant would have won and obtained a quashing order but for the unilateral undertaking entered into on 8 June.  Although the highway safety issue may have involved more than merely whether the county council had accepted the revised plans, in substance I think that that is what it boiled down to and that could have been put to bed a very long time ago, with the saving of costs, had the council made reasonable inquiries of the county council, as it has done very belatedly.  The claimant has lost on the section 106 issue and, as I say, it dropped, in its skeleton argument, the legitimate expectation issue.  
There is, therefore, no simple way of saying what the event is.  I shall, therefore, have to do the best I can in the circumstances and reach an overall judgment.  It is my judgment that there should be no order for costs.  It seems to me that but for the unilateral undertaking at a very late stage, this claim would have succeeded and, normally, the defendant has to pay the claimant's costs if they succeed on one ground unless the other grounds take up a very considerable amount of time and are obviously hopeless or there is some other reason for denying him his costs.  I do bear in mind the position on the other grounds. I am not attracted by the idea of trying to make a split order, the only consequence of which, I suspect, would be that the parties would incur far more costs in arguing about how to assess the costs than the costs they are actually claiming.  So doing the best I can and trying to reach a pragmatic solution which will probably disappoint all parties, I say no order for costs.  
Can I thank both counsel for their assistance in this case.