Jenkins & Anor v Secretary of State for the Communities and Local Government & Anor [2006] EWHC 3141 (Admin)

Case No CO/1772/2006[2006] EWHC 3141 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 15 November 2006
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
MR AND MRS D JENKINSClaimant-v-
Between
SECRETARY OF STATE FOR THE COMMUNITIES AND LOCAL GOVERNMENT (2) SOUTH GLOUCESTERSHIRE COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS S ORNSBY (instructed by Osborne Clarke) appeared for CLAIMANTMISS SJ DAVIES (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an application under section 288 of the Town and Country Planning Act 1990, whereby the applicants seek to quash the decision of an inspector in which he dismissed their appeals against the refusal of planning permission in six separate applications. All six related to the Woodlands Manor Nursing Home which the applicants own and are responsible for running. That nursing home is in South Gloucestershire, near Bristol. It is also in the Green Belt and it is that that has led to the refusal of planning permission.[2]The six applications are, with two exceptions, cumulative. What is proposed is that there should be an extension to the main building to permit instead of 40, 50 residents. That will involve building an extension to the main building. That is described as appeal E, the extension being a two-storey site extension to form the additional units.[3]The four applications B, C, D and F, involve the construction of a number of individual houses within the ground of the property. The purpose behind that is that they will be what can be described broadly as extra care homes. They will be sold when built, and the intention is that elderly people over the age of 65 will be able to live there in the knowledge that they have available necessary facilities and access to nursing care, if such care is needed, and the possibility also of preparation of meals on their behalf, and so on. That is an extension of the services that are provided by the nursing home at present.[4]Appeal B proposes four additional, what are described as, "care sheltered dwellings"; appeal D proposes two additional sheltered dwellings and appeals C and F proposes 19 and 14 respectively. The idea, I am told, was that the application for the two and for the four were cumulative, and in addition there should be either 14 or 19, the optimum being obviously 19, but 14 was an alternative. Miss Ornsby tells me that the reason why they were put in separate applications was to enable there to be a degree of flexibility in granting perhaps some, but not all, if that was considered to be appropriate.[5]The final application, appeal A, was for a substantial extension to the kitchen area of the existing building, that being a single-storey extension which would enable there to be greater space and better facilities for the preparation of food. This was within the Green Belt and it was therefore common ground, inevitably, that it was inappropriate development; it was contrary to the general Green Belt policies. It was accepted that in order to succeed on any of the appeals, although obviously they were connected in one sense but they were separate planning appeals, each had to be considered on its merits. None could succeed unless there were very special circumstances which enabled the presumption against inappropriate development within the Green Belt to be overcome.[6]The inspector had obviously viewed the site and he gives a description in his decision letter. What was proposed by the applications relating to the additional buildings was what was described as a care home village. In relation to the situation in the Green Belt he said:
"11. Taking, together therefore, all the appeal proposals before me, at [the nursing home], there would be a substantial increase in the footprint of existing buildings there. As a matter of fact, the openness of the Green Belt would be significantly reduced - resulting in considerable additional harm, as well as that resulting from additional building massing. In this overall (my emphasis) assessment, the appellants argued limited visibility. The existing nursing home boundary is fairly well defined with walls and boundary planting, albeit with less about the entrance to the home. They argued that their landscape assessment indicated that the area is able to accommodate development with relative ease. That area is, however, covered by Green Belt designation and national planning guidance indicates that the quality of the landscape is not relevant to the inclusion of land within a Green Belt or to its continued protection. There was some debate at the Inquiry about the visibility of [the nursing homes] from various viewpoints - this including, for example, gaps in hedges and camera lenses. I formed my own assessment, based on both an extensive preliminary and formal visit and from a number of viewpoints. On this overall assessment, I am in no doubt that the proposals taken together (albeit with some individual varying impact) would represent an intrusive and discordant element within the approved Green Belt and the mitigation measures intended by the appellants would not acceptably address it."
That is an important starting point because this is not a case where, although the development is contrary to Green Belt policy, one could say that if it were allowed it would not, because of its location, because of measures perhaps to conceal its impact, have a particularly adverse impact upon the landscape.[7]This is a case where the inspector formed a planning judgment -- and a judgment which I cannot go behind and do not seek to go behind -- that, as he puts it overall, the proposals would have a damaging effect. Clearly, the fewer the new buildings the less impact they would have. But when one sees what he says about the kitchen extension, which is the smallest in size of the appeal proposals, he states:
"Its height and massing would increase the scale of the existing building, against which it is set, and reduce the openness of the Green Belt, being visible from outside the site."
And he indicates that each of the applications would have a positive adverse effect, in his view, upon the openness of the Green Belt because of its visibility. He then went on to consider whether there were very special circumstances.[8]Setting aside for the moment appeal A, the kitchen, there were, broadly, two matters relied upon as constituting very special circumstances. The first was that there was a need for the sort of service that was to be provided by the proposals. That was a need which has not been properly met in South Gloucestershire and that was a reason why there should be an extension. It had to be borne in mind that this was already a very well run nursing home. That was common ground. In those circumstances, it was just the sort of situation in which an extension would be desirable. It had all the facilities readily available, and the evidence was that the need was not being met and was not being met by quite a large measure.[9]The second ground was that if the development, or at least a significant number of the development, were not permitted, the home would have to close: it would not be viable proposition to continue it in being; and evidence was called from the accountant for the applicants and given by the applicants themselves, which made clear, Miss Ornsby submits, that the undertaking was simply not viable without the development which was sought. Those were two grounds upon which were said to constitute the very special circumstances of the need.[10]The applicants assert that the inspector in his decision failed to give clear and adequate reasons why he was dismissing the appeals; and further, he failed to take account of highly material considerations. Essentially, so far as need was concerned, the level of provision for extra care and nursing in South Gloucestershire showed that there was a significant deficit which was not being met. So far as the demographics in the area were concerned, they reflected the national position, and therefore the inspector should have used the national averages about which evidence was before him. In reaching his conclusions he did not indicate that he had. There was a significant amount of replacement of the elderly from hospitals, described infelicitously as decanting, outside the district of South Gloucestershire. This indicated that there was a shortage and there was a need which was supported by the national averages for extra care for those who were not in hospital and the figures of placement from hospital outside the area did not reflect the true position because they did not take into account the needs of those who desired placement within the area, although not in hospital, but were unable to find any.[11]So far as viability is concerned, it is said the inspector failed to deal with the evidence that was before him and to explain how it was that that evidence did not persuade him that the enterprise without the developments was not viable.[12]So far as the reasons are concerned, I remind myself of the approach that I have to take in this court because, as is well known, and indeed as is provided by the statute, an appeal lies only on a question of law, and the approach to reasons is summarised in the well-known passage in SouthBuckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, by Lord Brown of Eaton-under-Heywood. In paragraph 36 he says this:
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. For reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
And there must be, as his Lordship indicated, "straightforward, down-to-earth reading of the decision letter without excessive legalism or exegetical sophistication." The inspector is not writing an examination paper and he is not required to deal with every material consideration or argument. He must, however, address the main issues in the dispute and, as it seems to me, not only enable the parties to understand why the decision has been reached, but satisfy the parties that he has not misunderstood or misapplied any of the evidence that has been put forward on the important issues in the case.[13]Let me deal first with need. The inspector accepted, as indeed was clear on the evidence, that there was a shortfall of places for both care and extra care in South Gloucestershire. The figures that were given amounted to a present shortfall of 269 placements and so far as the extra care is concerned a shortage of something over 700.[14]The inspector, as I have said, stated in his reasons that he accepted there was a shortage of places for care and extra care and a shortage of beds for nursing care and extra care provision. He relied largely, in deciding that that did not amount to a very special circumstance, upon the council's own document produced jointly with the South Gloucestershire NHS Primary Care Trust which was the draft accommodation care strategy for older people in South Gloucestershire. That was a document which had been produced in 2005. It indicated that the purpose behind it and the key outcomes were, among other things, a reduction of the number of people entering residential care, reduced hospital admissions, increase in the number of older people remaining at home and in homes for life properties, and accommodation for older people which provided a context for care rather than being dictated or constrained by care or support needs.[15]Home for life properties were the sort of properties that the applications for the homes, which are the subject of some of these appeals, would provide. The draft strategy gave some facts and figures. It noted that the highest population of older people in South Gloucestershire lived around the fringe of Bristol, but that there was also a significant proportion of over 65s living in Thornbury and in the more rural areas of South Gloucestershire. It noted that in South Gloucestershire people were generally healthier and had a greater life expectancy than the national average. It stated that there was an unmet need for appropriate housing for older people; that 30 per cent of home owners would be looking to move home past the age of 65 and that there was a need for a range of housing solutions available to rent or buy which were built to life time home standards, were wheelchair and hoist accessible and were flexible and adaptable enough to respond to changing needs and circumstances, and that based on projections there was also a need for at least 723 units of extra care in South Gloucestershire - some 578 to buy and 160 to rent. There was some argument as to whether those figures were looking to the future and specifically to 2016, which was the period over which this strategy was dealing, or whether it reflected current need.[16]It is to be noted that another passage in the same document, in summarising key issues, stated:
"There is unmet need for appropriate housing forOlder People. • There is currently a shortage of 738 Extra care homes to rent or buy in South Gloucestershire."
The two figures are not quite the same and may not be dealing with exactly the same requirements. However, there is existing shortage of appropriate homes for the elderly to live in if they need access to care and the facilities which I have referred to of over 700.[17]The inspector stated this in paragraph 17:
"The Council argued a wider context on need. The appellants did not significantly contest its view that South Gloucestershire has a younger and healthier population than the national average, has a relatively low proportion of older people that would have limited growth. My reading of the Primary Care Trust's draft strategy is that it did not identify any urgent and specific provision to deal with any defined acute problem in South Gloucestershire and, as a matter of record, the authority has not been the subject of any fines imposed under delayed discharge legislation. The Trust does not discount the potential for a reduction in the number of people entering residential care, this through new technology. Here, it is not for me to arbitrate on the alleged failings, or otherwise, of a Council function covered by other than planning legislation."
Thus, as is apparent, what he really based his view that there was no immediate acute problem of harm on was the lack of urgency that he derived from his reading of the strategy. He was, as it seems to me, entitled to form that view based upon that information. On the other hand, it was important that he should assess the extent of the problem of the deficiency and make clear why he was taking the view that the points made by the appellants were not sufficient to establish the acuteness of the need.[18]He dealt in paragraph 16 with an argument that had been raised, based upon the placement from hospital of elderly people outside South Gloucestershire. The point that was being made was that the numbers (I think there were 88 altogether in the relevant period that was referred to) were such as confirmed that indeed the problem was at present an acute one. While it was accepted that some, no doubt, of those who were placed outside South Gloucestershire may well have been perfectly happy, indeed more than happy, to have been placed where they were, the probability was that at least some, and the submission was a substantial portion, would have been unwilling.[19]The inspector made the point, and it is a perfectly valid point, that the largest population of old people did live around the fringe of Bristol and that it was perhaps not necessarily surprising that the number of such placements would be outside South Gloucestershire, perhaps in Bristol, perhaps around Bristol. What he said was that it would be unreasonable of him to conclude that placements from South Gloucestershire to, say, Bristol, would invariably involve unwilling elderly people, not least as they may have close ties with family nearby but in another authority. That has been relied upon by Miss Ornsby as showing that the inspector had misunderstood the point that was being made about placements out of the area. It was never suggested, she submits, that everyone would be unwilling, merely that some would be likely to have been unwilling. All that I think the inspector is there saying was that for example he was not prepared to accept that everyone moved outside the area would have been unwilling to go. It seems that on a fair reading that is indeed what he was saying. Effectively what he does in paragraph 16 is to reject the suggestion that the argument about placements outside South Gloucestershire shows that there was a present acute need. Of course it is right that placements from hospital is only part of the picture. There were likely to be others not in hospital who needed accommodation and who were not able to get it and that is where the extent of the shortfall could be, or indeed was, of considerable importance.[20]The inspector had his attention drawn to the existing planning policy. The relevant policy was one which, as it was said, adopted a generally permissive approach to proposals for residential development within the existing urban area and defined settlement boundaries and that included residential institutions and special needs accommodation. The point that he does not deal with that was relied upon by the appellants was that that policy was not producing, and indeed was not capable of producing, the extra places that were needed to make up the shortfall; and the reason why it was not capable of so doing was that there was no means of ensuring that any housing development, included the sort of accommodation that was in issue here. Absent any such means of requiring that a development including that sort of accommodation, market forces meant that it simply would not happen. The value of land with a potential for housing development without any restrictions, as against that, where there would be these restrictions, was a differential of something in the order of £250,000. That, I think was the evidence that was available. Nowhere, it is submitted, does the inspector grapple with that point. Accordingly, it is submitted that the reasons given by the inspector, albeit he relies upon the strategy, do not meet the case that was being presented and do not deal with the arguments which were said to show that in reality the problem was immediate and acute rather than one which could be deferred until the changes might be made in the new planning legislation pursuant to the 2004 Act which requires a reconsideration of, and a publication of, a new strategy. That would not be likely to happen until 2009 at the earliest; and so the immediate shortfall would exist. It is of course right, as the inspector pointed out, that the Green Belt was not where this sort of development should take place. But as I say, the crucial point that was being made was that absent any provisional plan which enabled some sort of requirement for that sort of accommodation, there was no sensible chance of it taking place, and indeed on the evidence before the inspector it was clear that it simply was not happening. Thus, although this was in the Green Belt and although it was damaging to the Green Belt, it was a case of extending an existing facility which already was inappropriate in the Green Belt and therefore it was necessary for it to be permitted.[21]There has been a degree of line-by-line criticism of the inspector's reason. That, as Miss Davis correctly submits, is not appropriate and does not accord with the approach which I have already summarised and which was set out in the South Buckinghamshire case. Nevertheless, it is, as I have said, important to see what was the crucial issue here. It was that there is an acute existing need. The inspector, as I say, dealt with that essentially by relying upon the strategy.[22]It seems to me that there is a flaw in the inspector's reasoning in that regard. However, having said that, one must be careful not to interfere with what can properly be said to be a planning judgment and must bear in mind the overriding principle that not only was this Green Belt, but it was inappropriate within the particular site because of the effect that it would have. Although I take the view that the inspector's reasoning was certainly less than perfect in this connection, if that had stood on its own I would have had difficulty in finding in favour of the appellant. But it does not stand on its own because one then goes to the question of viability.[23]The home had originally catered for 29 residents. In 2002 an application to build an extension to enable there to be 40 residents was allowed. That permission was for a development that was inappropriate, and accordingly it must be that very special circumstances were demonstrated. It seems, although the evidence is not entirely clear, that what was essentially relied upon was that anything less than 40 would not be financially viable, particularly, it would seem, in the light of the necessary controls over homes such as these. The appellants thought they had established that if they were permitted this extension the home would be viable. Unfortunately that, they say, did not prove to be the case, and one of the main reasons why it did not prove to be the case was that there were costs incurred which were considerably in excess of those that they believed would be incurred. Mr Gibbs, the solicitor who represented the applicants and who attended at the hearing, says this, in paragraph 11 of his statement:
"In respect of the evidence given by Mr Dunkley [the accountant called on behalf of the appellants] he further explained in some detail in his evidence in chief the existing financial situation of the Claimants. In particular he explained that due to the introduction of a new regulatory regime at a time when they were expanding the home to 40 bedrooms the Claimants incurred more cost than anticipated which was exacerbated by incorrect advice given to them by the Fire Authority."
[24]Apart from evidence from Mr Jenkins himself, the applicants rely in this regard upon evidence given by their accountant, Mr Dunkley. He in his proof had described the proposal, indicated what would be achieved were the proposal -- and he was looking at it as a general proposition, that is to say the increase of capacity in the main building from 40 to 50 beds and the provision of a total of 25 extra care dwellings. He said:
"Such a scheme would have the advantage of reinforcing the financial viability of the nursing home. Largely because of the continual increase in the level of care standards under the new legislation and the shortage in trained staff, the current entry point of the nursing homes is about 40 beds and this is the absolute minimum number to create a viable business. With the development of this scheme, the overall care facilities at Woodlands Manor would increase to 75, thus making the home more viable and giving it long term security as standards continue to increase."
He dealt with the figures. It is clear that he explained them in his evidence in chief, but he indicated that, in order to meet the capital repayments, the company needed to make profits of £74,000 after Mr and Mrs Jenkins' salary but before tax.[25]The point there is that the accounts that he had produced in 2003 and 2004, and the projected accounts for the following year, did not take into account the need to repay £73,500 annually by way of repayment of capital to the bank which had lent them the money that was needed, or some of the money that was needed, for the development from the 29 to the 40 beds, although there was a repayment of interest in the sum of £77,000 which was taken into account.[26]Now, the financial statements in respect of 2003/2004 showed a profit of some £101,600-odd but, as I say, that did not take account of the £75,000. Furthermore, it did not take account of any payment to Mr Jenkins or his wife. They were full-time at the home. They did not only own it, they were actively involved in running it. In addition, as I understand it, Mr Jenkins has sunk a very considerable sum of money of his own into the home. He will stand to lose a considerable portion of that, one imagines, if the home fails to continue to exist. Normally he would expect to receive some return on that investment, and certainly working at the home he and his wife would expect to receive some sort of remuneration. But he is not at the moment receiving anything except, I gather, by courtesy of the bank which does not help to reduce the amount which is owed to it.[27]Further, the projected profit indicated by Mr Dunkley was some £74,000. Again that fails to deal with the £73,500 owed to the bank. The result is that if things continue as at present, there is no profit coming from the home and so far as the Jenkins are concerned they are in a position, in effect, of having precious little, if anything, to live on, and that means, they say, that the future is, to say the least, bleak. Quite apart from anything else, they are unable to provide any sums to be set aside to cater for uncertainties. That was the case that was presented. It was said to result in a conclusion, when one looks at it, that this was not a viable enterprise as it stood. There was also evidence before the inspector that the home had been placed in the special measures section of the bank. There was no evidence as to what effect that would have, but he did know that the bank was holding its hand until the decision was made known. It seems to me that, as a matter of general knowledge, that must mean that the bank was seriously concerned as to whether it should continue to support the enterprise and was clearly considering whether action should be taken to ensure that the amount that had been lent was repaid. The only way I would imagine that that could be achieved was if the property was disposed of.[28]The inspector, in dealing with this point, relied entirely upon the statement of Mr Dunkley, because it was his view that Mr Dunkley's statement did not establish that the home was not viable. In paragraph 21 he said this:
"Next, to the viability of [the home] where I have carefully considered all the matters before me. The appellants' evidence - and its cross-examination - identified a number of concerns for me on my balancing exercise in relation to very special circumstances. The, clear, initial, implication of the evidence was that the existing operation at [the home] was, generally, viable. I saw this at paragraph 2.5 of the relevant evidence where the scheme was stated to have 'the advantage of reinforcing the financial viability of the nursing home'. It, [for a care home 'village', would make [Woodlands Manor Nursing Home] 'more viable'. I was told that the home had been placed in the special measures section of a national bank. The appellants confirmed that they had no objection to this, potentially sensitive commercial information, being included within my Decisions."
He went on to note that it was a care facility operated to high standards and had a high occupancy level, and was the subject of frequent inquiries. He said:
"In 2003/2004 it made a substantial operating profit, albeit the appellants told me that this did not make allowance for the absence of any salary paid to the appellants. If there had, a break even point would have resulted. There have been no additional, and recent, national regulatory requirements - albeit the appellants indicated that they incurred additional expense in respect of fire safety measures, not previously foreseen. Here, and appearing before me, was the home manager of [the home]. She, and for undoubtedly good reasons, drew a significant salary from [the home]. Her responsibilities at [the home], together with those of Mr and Mrs Jenkins, were examined at the Inquiry. I would have to say that the responsibilities claimed for the appellants by its viability witness did not appear to me to be substantially different to those of the Home Manager. The proposals would, to varying degree, allow a salary to be paid to the appellants, a return to investors, as well as a profit. The appellants did not satisfactorily explain why these matters had not be addressed in previous years. While, fairly, history and I have to determine the appeals before me, Mr and Mrs Jenkins argue that the threat of closure hangs over [the home]. I am not persuaded. Their viability witness was, in my opinion, clear in his assessment at paragraph 7.5 of the Summary and Conclusions to his evidence. He said there that failure of the site to be developed 'could' (my emphasis) lead to the closure of the home. There is no certainty here, reflecting my assessment. While proposals would increase the viability of [the home], the bottom line - to put it bluntly - is that the appellants have not demonstrated closure of the home would result if planning permission either, together or, in varying combinations were not granted. In this context of uncertainty, it would be most unwise of me to give substantial weight to the appellants' viability assessment - not least as the proposals would result in the permanent loss of Green Belt land."
That, submits Miss Ornsby, fails to have regard as it simply was not mentioned, and indeed the conclusions drawn are inconsistent with taking into account the £73,500 capital repayment which had to come out of the profit which had been indicated. Further, even assuming -- and it may well be proper to assume -- that Mr and Mrs Jenkins should not receive more by way of notional salary than the home manager, that would mean no profit for the future.[29]So far as the comment that there was no satisfactory explanation as to why those matters had not been addressed in previous years that was simply unfair. The reason why they had not been addressed in previous years was because in previous years there was a real financial problem and that had led to the increase of the application for the development to 40. That had unfortunately not produced the solution that had been anticipated and the situation now was as precarious, if not more so than, that which had hitherto existed.[30]The problem, of course, is that the inspector was entitled to rely upon the evidence that was put before him, and it is probably fair to comment that the accountant's evidence was perhaps not as strong as it might have been in favour of the case being made by the appellants. On the other hand, there were vital matters, particularly the capital repayment and the effect of the bank's placing them on special measures, that pointed in the direction of a lack of viability. The problem, of course, is that if the appellants were right, and if in truth the home was not viable, then the refusal of planning permission would be the death knell; and although it would be open to them to reapply if they could show that the situation was completely disastrous, by then the disaster was likely to have occurred.[31]Accordingly, as it seems to me, it was important that the inspector, in rejecting the viability evidence, was showing that he had taken all matters that ought to have been taken into account into account and on his reasoning, as it seems to me, he had not.[32]Looking at the matter overall, and having regard to the importance of the two issues, the viability perhaps being more important in the context of very special circumstances than the need, it seems to me that the inspector's decision letter was sufficiently defective as to show there was an error of law. I appreciate that one starts, as Miss Davies submits, from the clear conclusion that this was damaging to the Green Belt and thus it was for the appellants to establish their case that very special circumstances existed. But in the light of all the matters to which I have been referred, and the reasons given by the inspector, I confess I am just persuaded that the right outcome is, for the reasons that I have given, that the refusals should be quashed.[33]I have not dealt specifically with the kitchen. There is a complaint that there was no reference to what was relied upon as very special circumstances. What in fact was relied on was that the increase in size of the kitchen would enable there to be a better provision of food for the residents and would be beneficial in terms of hygiene. Indeed there was support for that from an independent source, part of the council itself. It is true that the inspector does not specifically refer to those matters, and it may be that he should have done. On the other hand, it seems to me apparent that those matters were not capable, in the circumstances, of persuading him that very special circumstances existed. The result would indubitably have been the same.[34]Accordingly I am not persuaded that that omission is sufficient on its own to justify the quashing of the decision in appeal A. On the other hand, appeal A might well have had a much better chance of success if any of the developments which had been applied for in the other applications had succeeded. Accordingly, it seems to me -- and there is no dissent from counsel on this point -- that if I am to quash the other decisions, appeal A should be included. They should all go back for reconsideration together, and of course it will then be open to the appellants, certainly on viability, to deal with the up-to-date position. So far as need is concerned, I am bound to say that I think they have less prospect on that ground, although as I found, it is important that the matters that they raise should be properly dealt with and properly reasoned by whichever inspector now deals with the appeals.[35]MISS ORNSBY: I am grateful for that, your Lordship. In so far as costs is concerned, I make an application for costs against the first defendant.

MR JUSTICE COLLINS: I do not imagine that there will be resistance of that application.

[37]MISS DAVIES: There is none in principle, my Lord.[38]MR JUSTICE COLLINS: No. You quarrel with the quantum.[39]MISS DAVIES: I do quarrel with the quantum. As your Lordship will see, £28,900, which is an enormous sum in a case like this ...

MR JUSTICE COLLINS: It does seem very large.

[41]MISS DAVIES: In those circumstances --[42]MR JUSTICE COLLINS: It is very difficult for me in a case such as this where there are quite substantial sums to make a summary assessment, and I would be very reluctant to do so.[43]MISS DAVIES: That is exactly what I was going to submit.

MR JUSTICE COLLINS: I should say detailed assessment, if not agreed.

[45]MISS ORNSBY: That is the order that we --

MR JUSTICE COLLINS: You were expecting that.

[47]MISS DAVIES: Yes.

MR JUSTICE COLLINS: That is what you will get.

[49]MISS DAVIES: My Lord, I do have an application. Obviously those who instruct me will consider carefully what your Lordship has had to say, because at this stage --[50]MR JUSTICE COLLINS: I do not think I have made any new law here. I have simply applied what I regard to be the existing law to the facts. This is a case depending upon its own facts, is it not? You may say I got it wrong. You may be right that I got it wrong. But I think you will have to persuade the Court of Appeal that it is one which needs permission.[51]MISS DAVIES: My Lord, yes, on that --

MR JUSTICE COLLINS: Do you want a time after you get the transcript?

[53]MISS DAVIES: If your Lordship would.

MR JUSTICE COLLINS: That is entirely reasonable.

[55]MISS DAVIES: Would your Lordship order three weeks after we get the transcript?

MR JUSTICE COLLINS: Yes, I think that is reasonable.

[57]MISS DAVIES: I am grateful, my Lord.[58]MR JUSTICE COLLINS: We have now to fill in a form giving reasons for decisions. I have put "decision on its facts; the established law", so that you know what is there.[59]MISS DAVIES: Thank you, my Lord.