Anderson, R (on the application of) v City of Bradford Metropolitan District Council [2006] EWHC 3344 (Admin)

Case No Co?4171/2006

[2006] EWHC 3344 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 24th November 2006

Strand

London WC2

B E F O R E:

MR JUSTICE CRANE

Between

THE QUEEN ON THE APPLICATION OF ANDERSONClaimant

-v-

Between

CITY OF BRADFORD METROPOLITAN DISTRICT COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR P BROWN (instructed by Richard Burton) appeared for CLAIMANT

MR A CARTER [MISS A BICARREGUI (instructed by Legal Services, City of Bradford MDC) appeared for DEFENDANT

MR J BARRETT [MR C BUTTLER]appeared for INTERESTED PARTY

J U D G M E N T

[1]MR JUSTICE CRANE: The claimant seeks to quash decisions made by the defendant planning authority set out in letters dated 21st and 24th February 2006. Those letters relate to planning permission previously granted for development of Buck Park Quarry. The quarry is a long established working stone quarry in the green belt around Bradford, just north of the village of Denholme. A number of individual houses are sited near to the quarry, a small group at Buck Park Farm being the closest. There is a useful plan, among many, at page 218 of the bundle. The claimant lives in Denholme. She, and indeed others, have objected to the operation of the quarry for a number of years and the claimant is a member of the Denholme Town Council which apparently also objected to the development.

[2]The relevant permission had been granted by the inspector on appeal on 14th March 2001. The application before him concerned two inter-related developments. First, a variation of two permissions in an earlier planning permission of 1992 which had the effect of extending the time during which the extraction of stone was permitted from the workings until 2006 and to increase the depth of those workings; secondly, the disposal within the quarry of a large quantity of controlled domestic, commercial and industrial waste over a ten year period and matters of restoration in connection with those. In the event, the inspector granted the application and permission. Conditions were attached. In fact, I understand, there has been no extraction in accordance with the permission and the permission in relation to extraction has expired.

[3]The decisions of the defendant under challenge relate to conditions 5, 7 and 8 which each provided for certain details to be submitted to and approved by the defendant before development took place. Details were in fact submitted and approved.

[4]In the papers there is repeated reference to the discharge of the conditions. Where a condition had been fully complied with, then it is correct to describe it as discharged, but, in the case of some of the conditions, implementation of the approved details remained to be completed and discharge would not take place until that implementation had been completed. Therefore I shall refer to approval rather than discharge.

[5]The papers came before Newman J who took the view, as he said in his order, that the issues merit consideration at an oral hearing, which, according to the judge, could be treated as the substantive hearing if permission is granted. In fact, the hearing has taken place as a rolled up hearing of that kind when all the arguments relating to both permission and any subsequent substantive hearing were dealt with together. Certain grounds were abandoned before the hearing by the claimant, but, it was made clear, only for the purpose of this hearing and not for any other challenge in the future to the planning permission in connection with this quarry.

[6]There are essentially two grounds. The first ground relates to the three conditions that I have mentioned and is to the effect that there was not sufficient detail submitted for approval of the conditions and that the decision of the defendant was therefore fundamentally flawed because they did not have a rational basis for making the decision. Condition 5 related to landscaping, condition 7 to foul and surface water drainage and 8 to noise attenuation measures.

[7]Ground 2 is put forward in a slightly different form from the original grounds. The way that Mr Brown on behalf of the claimants put it in his skeleton argument was this:

"Having regard to the particular facts of this case and the lapse of time since publication of the environmental statement, which was produced in support of the original application for planning permission, the defendant should have requested a further or updated environmental statement before approving the details submitted pursuant to the conditions."

There is a further issue, if the claimant would otherwise succeed, in relation to delay.

[8]I have now formally given permission for the interested party, despite the lack of an acknowledgement of service, to take part in the proceedings. There had been no objection to their doing so and Mr Buttler on behalf part of the interested party took a full part in the submissions. Nevertheless, his submissions largely adopted those of the defendant and he described himself modestly, but not wholly inaccurately, as the "sweeper".

[9]Before I come to individual conditions, one general matter is relied on by the claimant. The decision to grant permission was the subject of a challenge under section 288 of the Town and Country Planning Act 1990 in which the grounds focused on the adequacy of the environmental statement. That challenge was rejected by Silber J and his decision upheld by the Court of Appeal. The case bears the title Smith v Secretary of State for the EnvironmentTransport and the Regions

[2003] EWCA Civ 262

[10]In my view, Mr Brown is correct to submit that, although the Court of Appeal agreed with Silber J in dismissing the challenge, they were somewhat troubled by the conditions that had been imposed. Sedley LJ encapsulated those concerns as follows:

"54. Yet anybody reading items 3, 5, 6 and 9 of the conditions which the inspector decided to set could be forgiven for concluding that instead of fulfilling this obligation he had simply passed the buck to the local planning authority, with two apparent results. One was that the content of the conditions could thereafter be set by private negotiation between developer and local authority and become known to the public only when they were a fait accompli. The second was that the negotiated content might modify significant elements of the consent. 55. If either of these were the true effect of the conditions which form part of the grant I would have had little hesitation in holding the decision to constitute an abdication of the inspector's functions. It is only if what is left over is so defined that it cannot modify or disrupt the terms on which planning permission is being granted that, in my judgment, the handover of the responsibility to the local planning authority is permissible. Not without some doubts, I am prepared to agree with Waller LJ and Black J that, carefully and narrowly construed, the conditions imposed by the inspector in the present case are contained in this box. They are to be read, in other words, as operating within not only the plans which the inspector is giving permission to implement but the conditions set by him for remedying the consequent impact on the environment. (I confess in this connection that I have been entirely unable to follow the distinction which Mr Corner QC has sought to make between the variation or enforcement of a condition and the variation or enforcement of the planning permission of which it is part. I am consoled by the fact that Mr Barrett appeared to share by difficulty.)"

[11]In my judgment the point is well made by the claimant and the conditions should indeed be carefully and narrowly construed as Sedley LJ indicated. It must be borne in mind that details approved must be sufficiently clear to be the subject of the enforcement if necessary.

[12]I turn to ground 1 and to condition 5. Condition 5 reads:

"No development shall take place until the detailed scheme for the landscaping of the site has been submitted to and approved in writing by the local planning authority. Such scheme shall include details of: (a) the positions, species and sizes of all existing trees, shrubs and hedgerows on the site which are to be retained and the proposals for their protection throughout all operations on the site."

[13]There are then further subparagraphs dealing with the details of all new trees and shrubs, the method of planting, any hard landscaping, and the programme for implementation for carrying out of the scheme; and then the condition deals with implementation once the scheme has been approved. The reason for the condition was in part past neglect of the matter of tree planting, which the inspector dealt with at paragraph 13 of the decision letter.

[14]A Landscape Management Plan was submitted on 19th January 2006. The short submission of the claimant is that condition 5A was not complied with and the details of the existing trees were either non-existent or wholly inadequate.

[15]The defendants seek to answer those submissions by relying on certain parts of the Landscape Management Plan to which I specifically refer.

[16]In paragraph 2.1, under the heading "Existing vegetation structure", the following sentence appears:

"Tree and shrub cover within the site is limited to a small area of woody, natural colonisation, adjacent to the northern boundary and the trees that line the existing quarry access road (see Drawing No P182-004)."

[17]In paragraph 4.1 of the Management Plan there is a description of Buck Park Wood and of Park Wood. Park Wood is of interest, but is not actually on the site.

[18]As far as Buck Park Wood is concerned, a small part of it does lie on the site. Paragraph 4.1.1 reads:

"Buck Park Wood W1 is classified as a broadleaved, semi-natural wood covering the steep valley sides of Milking Hole Beck. The bulk of Buck Part Wood lies outside the application site. A variety of broadleaves and conifers of various ages constitute the wood's structure. Scrub and glades further add to its diversity. The management plan will aim to retain the character and species diversity of that part of Buck Park Wood. This will be achieved by selective thinning, felling and replanting."

[19]Of the other sections of the Management Plan relied on by the defendants section 5 is concerned with new planting, although there is a reference to existing pines, which had plainly suffered somewhat, adjacent to access road. Section 6 dealt only with site inspections and monitoring. If one refers to the plan, which is the same plan as I have mentioned at page 218 of the bundle, it is possible to identify the area of Buck Park Wood that is on the site. However, it is by no means clear from the plan whether other areas which appear to be woodland are in fact included. The description in the Management Plan implies that they are not.

[20]The claimant is criticised for using through counsel the term "inventory" as a description of what is required by condition 5A. I am prepared to envisage that in the case, for example, of saplings or shrubs an indication of the location of a group of the same species and approximate size would be a sufficient compliance with condition 5A. However, at least in Buck Park Wood there are noted to be broad leaf trees and conifers of various ages. No attempt is made in the Management Plan to describe or give particulars of even established specimen trees.

[21]In my judgment, despite the submissions made by Mr Carter on behalf the defendants, supported by counsel for the interested party, the details submitted simply did not comply with condition 5A, even if that were broadly construed, let alone if narrowly construed. I therefore grant permission on this ground. This ground will succeed and I shall return to the question of remedy after considering the other grounds.

[22]I turn to condition 7 which reads:

"No development shall take place on site until details of a scheme for foul and surface water drainage have been submitted to and approved in writing by the local planning authority. The scheme so approved shall thereafter be completed prior to the commencement of disposal of waste and the works comprised in the approved scheme shall be retained at all times thereafter."

[23]At the centre of the claimant's submissions is the contention that two plans submitted were inconsistent with each other in relation to certain ponds or tanks. They are the plans at pages 217 and 242 of the bundle. In summary, the defendant's contention is that the former indicates the position of the ponds or tanks while the latter is a detailed specification.

[24]The plan at page 217, plan P182-003REV3, dated February 2006, is described as "site drainage layout." It also contains a rubric saying:

"All dimensions must be checked on site and not scaled from this drawing."

It shows two settlement ponds each with an adjacent attenuation pond. The ponds vary slightly in size and are roughly oblong. Mr Brown points out that a cesspool, also marked on that plan although not crucial to the present hearing, is described as "with concrete surrounds", whereas nothing is said about the construction of the four ponds.

[25]Turning to the plan at page 242, that is plan PM/2530/01. The date appears to be January 2006. It is entitled:

"Stilling pond outline details to control and settle out suspended particulate matter from site works."

[26]I think it is now conceded that the terms "ponds" and "tanks" are used interchangeably, and, indeed, it seems, to me a reasonable conclusion from looking at the plans.

[27]It is perfectly true that certain details that would be required by anyone constructing a pond are not included on the second plan. For example, "detailed design of flow controls" is specifically indicated as something not included on that plan itself and the cross-section of the general arrangement is described as "typical".

[28]The real issue appears to me to be how detailed does the scheme required by condition 7 have to be? I do not consider that a complete specification or completely definitive drawings are required by that condition. The scheme has to be implemented. If it complies with these plans, the condition will be discharged, although no doubt there would be, as to certain matters of detail, a number of alternatives which would comply with the specification. In my view there is sufficient detail. The point is made that it is unclear which takes precedence, but in my view it is reasonably clear that ponds or tanks complying with the plan at page 242 must be constructed in the position shown on the plan at page 217. I have already indicated that I would refuse permission on this aspect of the application and that I confirm.

[29]I turn to condition 8. Condition 8 reads in part:

"No development shall take place until the details of the proposed noise attenuation measures along the northern and western boundary of the new access road and the northern boundary of the site have been submitted to and approved in writing by the local planning authority."

[30]The condition goes on to require certain details as to exact location, design and a maintenance programme for the barriers and then continues by requiring implementation of the approved barriers. It is to be noted that condition 8 is only one of a number of conditions which Mr Barrett on behalf of the interested party felicitously called a "suite of conditions" relating to noise.

[31]Condition 26 required certain hours of operation except in emergencies. Condition 27 required maintenance of vehicles, plant and machinery, and effective silencers. Condition 28 required that during operational hours noise levels should not exceed certain specific levels at specified noise sensitive properties which are set out. Condition 29, in effect, was a condition linked to condition 28. I note that noise levels for the purposes of the calculations in conditions 28 and 29 were to be determined in accordance with BS4142.

[32]Mr Barrett on behalf of the interested party submitted, although not in his skeleton, that condition 8 was in fact directed only to the visual aspect of the barriers. That submission does have some attractions because condition 8 appears in the conditions shortly after the landscaping conditions and separately from the other noise conditions. On the other hand, it appears between conditions dealing with drainage and dust, both of which plainly required consideration of more than what was visual. I accept that condition 8 on its proper construction is not limited simply to the visual aspect of the barriers.

[33]There was submitted to the defendants a Noise and Dust Mitigation Scheme by White Young and Green on behalf of the defendants. Two submissions are made by the claimants. The first of them is this. The claimant submits that BS5228 was the appropriate basis for modelling and assessing the noise impact of the proposals for the barriers.

[34]It is pointed out that the environmental statement supporting the underlying permission had referred to Mineral Planning Guidance Note 11 ("MPG11") and the recommendation of MPG11 that predicted noise levels be calculated using BS5228. The environmental statement at paragraphs 7.3.3 and 7.3.4 referred to those recommendations. The reference to BS5228 in MPG11 is at paragraph 15 of MPG11. I do not think it is necessary to set it out.

[35]MPG11 was in fact superseded by the Minerals Policy Statement 2 ("MPS2") in March 2005. MPS2 also referred to BS5228 in these terms in paragraph 2A.3:

"Part of BS5228 (1997) provides generalised data on noise emissions from various plant and activities and methodologies for calculation of how much noise is reduced by distance, by barriers and over soft ground."

[36]But, says the claimant, look at the White Young Report in the introduction and scope section. Noise levels were there described as predicted at local representative receptors, using computer aided design noise abatement noise modeling software. It was said that this model incorporated the methodology outlined in the Department of Transport calculation of road traffic noise and noise propagation based on IS09613. That is amplified at paragraph 2.1 of the White Young report.

[37]Mr Brown makes the point that Mr Quantick, one of the witnesses whose statement was filed on behalf of the defendant, appears to be unaware of the replacement of MPG11 by MPS2. There is some force in that submission, but it is to be noted that MPS2 is, if anything, less prescriptive than MPG11 in relation to the use of BS5228 as will be apparent from the sentence in MPS2 to which I have referred.

[38]I note in passing that the quarrying aspect of this permission may be now somewhat academic anyway since the time for the further excavations permitted have passed. But none of the submissions relating to this aspect of the case relied on that point.

[39]The defendant contends that condition 8 does not require the use of BS5228. Mr Carter points out that where the conditions require the use of a British Standard they say so, as in conditions 28 and 29. He points out that even MPS2 does not require its use in all circumstances. The defendant also contends that actual noise measurements were used as the basis of the calculations in the White Young report and he submits that that was permissible for the purposes of condition 8. It is, indeed, correct that in paragraph 2.2.2 of the White Young report there is reference to noise recordings being undertaken at representative quarries and tips where identical equipment and working methods to those to be used at Buck Park were operating. I realise, of course, that the use of the actual noise measurements does not dispose of the objection by the claimant if BS5228 was indeed still required as a basis for the modeling.

[40]The claimants' submissions are helpfully summarised in paragraph 35 of Mr Brown's skeleton. It is said that the details submitted to the defendant fail to take account of a relevant consideration, namely that noise was to be assessed by reference to BS5228. It is further submitted that the defendant took into account an irrelevant consideration, namely assessment using the modeling criteria to which I have referred in the introduction and scope section. Alternatively, the claimant submits that the defendant reached a conclusion that was irrational in deciding that the material submitted was sufficient to discharge condition 8, or, to use my language, for approval required by condition 8, having regard to the criteria by which MPG11 required such a decision to be taken.

[41]In my judgment, the use of BS5228 was not required explicitly by condition 8. Even if one takes into account the recommendation in MPG11 and the suggestion, as I would describe it, in MPS2 it was permissible not to use BS5228.

[42]That does not dispose of the condition 8 submissions and I come to the second of the two submissions on this point. The claimants' submissions are helpfully summarised again by Mr Brown, this time in paragraph 41 of his skeleton argument. It is said that the defendant failed to take into account that the rating level was to be determined in accordance with BS4142. To summarise shortly his submissions, BS4142 would require certain tonal corrections.

[43]Those tonal corrections are referred to in BS4142. They can be summarised as follows. In the case of certain kinds of noise, which I would describe as perhaps particularly irritating or noticeable noises, a five decibel correction has to be added to noise levels if one is applying the methodology of BS4142. The submission is that unless BS4142 is used and the tonal correction made, the scheme for the barriers would manifestly be incapable of satisfying in due course condition 28. It is also pointed out that the noise levels calculated were very close to the condition 28 limits and therefore the issue of the tonal correction was crucial.

[44]I do not accept those submissions. Condition 28 provides very detailed requirements about monitoring and would operate independently of condition 8. Condition 8 specified no particular method of calculation or modeling. In addition, since actual noise levels were used, in my view the tonal corrections were not necessarily required. For those reasons, on the two aspects of the submissions on condition 8, I shall refuse permission.

[45]I turn to the second ground relating to the need for a further environmental statement, or the need at least to consider whether such a further statement should be obtained. This ground involves consideration of the European Court jurisprudence on the circumstances in which an environmental statement is required. There are arguments to be considered which deserve permission and I grant permission. An environmental statement, as I have mentioned, was before the inspector. It was dated 1998, but later information was also available to the inspector. He refers to that at paragraph 2 of the decision letter. The reasons why Mr Brown submits on behalf of the claimant a further environmental statement might indicate a different situation from that before the inspector are set out at paragraphs 48 onwards of the skeleton argument. I summarise those.

[46]It is pointed out that the original environmental statement was now over eight years old. Background conditions, such as noise and traffic, were likely to have changed significantly, and, indeed, that was, it is said, partly conceded in effect by the defendant in the case that they had been putting forward. Secondly, in relation to fauna, although birds, bats and badgers had not figured in the environmental statement, there was material available to the defendants, including comments from their own Senior Countryside Officer, indicating the presence of peregrines, foraging bats and badgers. Thirdly, it is said that the excavation and working of minerals had not taken place and therefore the question of disposal of the waste would take place in somewhat different circumstances from that envisaged if the excavation had taken place. Fourthly, it was said that the landscaping had not yet taken place and the circumstances in which landscaping was required had, or at least might well have, changed, and, in addition, there were new regulations in connection with the European Directive. For the present I hope that adequately summarises the matters on which the claimant would seek to rely.

[47]I turn to the law. I am concerned here with the EU Directive 85/337/EEC as amended. Article 2 reads in part as follows:

"(1) Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. Those projects are defined in Article 4. (2) The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive."

[48]Article 4 refers to projects listed in the annexes to the directive.

[49]If one turns to Article 1(2) development consent is defined:

"'development consent' means: the decision of the competent authority or authorities which entitles the developer to proceed with the project."

[50]Mr Carter's helpful skeleton makes it clear that it is common ground that the directive is of direct effect on the defendant as planning authority. The defendant's submissions on this aspect of the case were all adopted by the interested party. It is also common ground that the domestic regulations made in order to bring into effect the directive do not provide an answer to the present question.

[51]Three decisions of courts require careful consideration. The first is the decision of the House of Lords in R v NorthYorkshire County Council ex parte Brown and another

[2000] 1 AC 397

. That case concerned an old planning permission for a quarry. Under section 22 of the Planning and Compensation Act 1991 certain holders of old permissions had to apply within a stipulated period to the local mineral planning authority for registration of the permission and for the determination of the conditions which should thereafter apply. In other words, this case concerned the issue whether the imposition of new conditions amounted to development consent for the purpose of the European legislation.

[52]The principal speech in the House of Lords was delivered by Lord Hoffman at page 404. He said:

"Can it therefore be said that the decision imposing the conditions is a 'decision of the competent authority or authorities with entitles the developer to proceed with the project' -- the definition of a 'development consent' in the Directive? The imposition of conditions is not a decision that the developer shall be entitled to proceed. Mr Straker, who appeared for the authority, was quite right in saying that the source of the developer's right to proceed with the project was and remained the planning permission of 1947, even after conditions had been imposed. Section 22(2) expressly says that the effect of the registration of conditions is that the old minuting permission has effect as if granted subject to the conditions. On the other hand, the developer cannot proceed unless the planning authority has determined (or is deemed to have determined: paragraph 2(6)(b)) the appropriate conditions. So that although the determination does not decide whether the developer may proceed but only the manner in which he may proceed, it is nevertheless a necessary condition for his being entitled to proceed at all. Is this sufficient to bring it within the European concept of a development consent? I think it is. The purpose of the Directive, as I have said, is to ensure that planning decisions which may affect the environment are made on the basis of full information. In Aannemersbedriff PK Kraaijeveld BVv Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] ECR I-5403, 5444, paragraph 31 the European Court of Justice said that 'the wording of the Directive indicates that it has a wide scope and a broad purpose'. A decision as to the conditions under which a quarry may be operated may have a very important effect on the environment. It can protect it by imposing limits on noise, vibration and dust, requiring the preservation of important natural habitats or the reinstatement of damage to the landscape and in many other ways. Without such conditions, the unrestricted operation of the quarry might well have a significant effect on the environment. It cannot therefore be said that the environmental effect of the quarry was determined once and for all in 1947. One of the purposes of the Act of 1991 was to allow mineral planning authorities to assess those effects in the light of modern conditions. The position would be different if, upon a proper construction of the United Kingdom legislation, the determination of conditions was merely a subsidiary part of a single planning process in which the main decision likely to affect the environment had already been taken. In such a case, the environmental impact assessment (if any) would have been made at the earlier stage and no further assessment would be required. Or in the case of a project in which an application for the principal consent had been made before the Directive came into force on 3rd July 1988, no assessment would be required at all."

[53]At page 405 he also said this:

"The principle in this and similar cases seems to be clear: the Directive does not apply to decisions which involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given. I express no view about the way in which this principle was applied to the different facts of the various cases which were cited. It seems to me clear, however, that it can have no application to this one."

[54]The second of the three cases was a decision of the European Court of Justice in R (Wells) v Secretary of Statefor Transport Local Government and the Regions [2004] Env LR 27. This was another case concerning a new scheme of conditions imposed under the 1991 Act. First, paragraphs 37 and 38 read:

"37. The question whether the decision determining new conditions and the decision approving matters reserved by the new conditions constitute development consent within the meaning of Art 1(2) of Directive 85/337 is a question concerning the interpretation of Community Law. The court has consistently held that, in light of both the principle that Community law should be applied uniformly and the principle of equality, the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope is normally to be given throughout the Community an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question (Case 327/82 Ekro [1984] ECR 107, para [11], and Linster, cited above, para [43]). 38. Accordingly, the question whether the decision determining new conditions and the decision approving matters reserved by the new conditions constitute development consent within the meaning of Art 1(2) of Directive 85/337 is admissible."

Secondly, paragraphs 44 to 53 read:

"44. In the main proceedings, the owners of Conygar Quarry were obliged under the Planning and Compensation Act 1991, if they wished to resume working of the quarry, to have the old mining permission registered and to seek decisions determining new planning conditions and approving matters reserved by those conditions. Had they not do so, the permission would have ceased to have effect. 45. Without new decisions such as those referred to in the previous paragraph, there would no longer have been consent, within the meaning of Art 2(1) of Directive 85/337, to work the quarry. 46. It would undermine the effectiveness of that directive to regard as mere modification of an existing consent the adoption of decisions which, in circumstances such as those of the main proceedings replace not only the terms but the very substance of a prior consent, such as the old mining permission. 47. Accordingly, decisions such as the decision determining new conditions and the decision approving matters reserved by the new conditions for the working of Conygar Quarry must be considered to constitute, as a whole, a new concept within the meaning of Art 2(1) of Directive 85/337, read in conjunction with Art 1(2) thereof. 48. It should be added that, since those decisions were adopted on June 25, 1997, and July 8, 1999 respectively, an old consent granted before July 3, 1988 is not in issue. Nor is this a pipeline case since the applications leading to the decisions were submitted in 1993 or 1994 and in 1997 or 1998 respectively. 49. The time at which environmental impact assessment must be carried out. 50. Given that, in the context of a consent procedure comprising several stages, merely establishing that there is a development consent within the meaning of Directive 85/337 cannot provide the referring court with a complete answer as regards the obligation on Member States to carry out an assessment of the environmental effects of the project at issue, it is necessary to consider the question as to when such an assessment must be carried out. 51. As provided in Art 2(1) of Directive 85/337, the environmental impact assessment must be carried out before consent is given. 52. According to the first recital in the preamble to the directive, the competent authority is to take account of the environmental effects of the project in question at the earliest possible stage in the decision-making process. 53. Accordingly, where national law provides that the consent procedure is to be carried out in several stage, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure. 54. The answer to the first two questions must therefore be that Art 2(1) of Directive 85/337, read in conjunction with Art 4(2) thereof, is to be interpreted as meaning that, in the context of applying provisions such as section 22 of the Planning and Compensation Act 1991 and Schedule 2 to that Act, the decisions adopted by the competent authorities, whose effect is to permit the resumption of mining operations, comprise, as a whole, a development consent within the meaning of Art 1(2) of that Directive, so that the competent authorities are obliged, where appropriate, to carry out an assessment of the environmental effects of such operations."

[55]The third of the cases was before the European Court of Justice in 2006: R (Barker) v Bromley London Borough Council and The Commission of the European Communities v UnitedKingdom

[2006] 3 WLR 492

. This was a case in which there had been outline planning permission and the issue was whether an environmental impact statement was required at the stage when the reserved matters were being considered by the Council. It is to be noted that this was a case involving outline planning permission with the reservation for approval of later matters, a situation which cannot arise in some planning circumstances, including the one with which I am concerned. It is also to be noted that the local planning authority had not obtained an environmental impact assessment at the outline permission stage.

[56]I read from paragraph 38 to paragraph 49:

"38. By its first question, the national court essentially asks whether classification of a decision as a 'development consent' within the meaning of art 1(2) of Directive 85/337 depends exclusively on national law. 39. Article 1(2) of Directive 85/337 defines 'development consent" for the purposes of the Directive as the decision of the competent authority or authorities which entitles the developer to proceed with the project. 40. Thus, while that term is modeled on certain elements of national law, it reminds a Community concept which, contrary to the submissions of the council and the United Kingdom Government, falls exclusively within Community law. According to settled case law, the terms used in a provision of Community law which makes no express reference to the law of the member states for the purpose of determining its meaning and scope are normally to be given throughout the Community an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question: see, to that effect, EkroBV Vee-en Vleeshandel v Produktschap voor Vee enVlees (Case 327/82) [1984] ECR 107, para 11; Stateof the Grand Duchy of Luxembourg v Linster (Case C-287/98) [2000] ECR I-6917, para 43, and R (Wells)v Secretary of State for Transport, Local Governmentand the Regions (Case C-201/02) [2004] ECR I-723, paragraph 37. 41. The answer to the first question must therefore be that classification of a decision as a 'development consent' within the meaning of article 1(2) of Directive 85/337 must be carried out pursuant to national law in a manner consistent with Community law. Questions 2 and 3 42. By its second and third questions, which it is appropriate to consider together, the national court essentially asks whether articles 2(1) and 4(2) of Directive 85/337 are to be interpreted as requiring an environmental impact assessment to be carried out if, following the grant of outline planning permission, it appears at the time of approval of the reserved matters that the project is likely to have significant effects on the environment by virtue _inter alia_ of its nature, size or location. 43. First, according to article 2(1) of Directive 85/337, projects likely to have significant effects on the environment, as referred to in article 4 of the Directive read in conjunction with Annexes I and II thereto, must be made subject to an assessment with regard to their effects before development consent is given: Wells, para 42. 44. As has been noted in para 39 of the present judgment, article 1(2) of Directive 85/337 defines 'development consent' for the purposes of the Directive as the decision of the competent authority or authorities which entitles the developer to proceed with the project. 45. It is apparent from the scheme and the objectives of Directive 85/337 that that provision refers to the decision (involving one or more stages) which allows the developer to commence the works for carrying out his project. 46. Having regard to those points, it is therefore the task of the national court to verify whether the outline planning permission and decision approving reserved matters which are at issue in the main proceedings constitute, as a whole, a 'development consent' for the purposes of Directive 85/337: see, in this connection, the judgment delivered today in Commission of the European Community v UnitedKingdom of Great Britain and Northern Ireland (Case C-0508/07), post, p 501B, paras 101 and 102. 47. Secondly, as Court of Justice explained in Wells [2004] ECR I-723, para 52, where national law provides for a consent procedure comprising more than one stage, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which a project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure. 48. If the national court therefore concludes that the procedure laid down by the rules at issue in the main proceedings is a consent procedure comprising more than one stage, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, it follows that the competent authority is, in some circumstances, obliged to carry out an environmental impact assessment in respect of a project even after the grant of outline planning permission, when the reserved matters are subsequently approved: see, in this regard, Case C-508/03, post, para 103-106. That assessment must be of a comprehensive nature, so as to relate to all of the aspects of the project which have not yet been assessed or which require a fresh assessment. 49. In the light of all of the foregoing, the answer to the second and third questions must be that articles 2(1) and 4(2) of Directive 85/337 are to be interpreted as requiring an environmental impact assessment to be carried out if, in the case of grant of content comprising more than one stage, it becomes apparent, in the course of the second stage, that the project is likely to have significant effects on the environment by virtue _inter alia_ of its nature, size or location."

[57]No counsel suggests a reference to the European Court of Justice.

[58]A number of matters arise in interpreting, in particular, the case of Barker. In paragraph 48 there is a reference to "procedure laid down by the rules". In this case the granting of permission with conditions that have to be fulfilled before the permission can be implemented is not a procedure laid down by the rules. It is, however, a very common and established procedure and it seems to me that in principle it is not a procedure which is different from the kind of procedure envisaged by the European Court in paragraph 48. In my view that difference does not defeat the claimant when it relies on Barker.

[59]Secondly, it is clear from paragraph 48 that a fresh assessment is envisaged as a possibility, even where an assessment has already been carried out at the stage of permission. I accept that in a case where outline planning permission is given it is unlikely that if there has been an environmental impact assessment at the time of the outline permission a fresh assessment will be required if reserved matters do indeed fall within the outline permission, but, in any event, this is not such a case.

[60]I come, therefore, to a case such as this. One question is what would the test be for the obtaining of a new assessment if one was required. In paragraph 49 in Barker the European Court used this phrase:

"... the project is likely to have significant effects on the environment by virtue inter alia of its nature, size and location."

[61]I invited Mr Brown to say what the test would be precisely in a case where a fresh assessment was to be obtained. I do not think he ever came forward with a precise suggestion, but it seems to me that the test would have to be, following Barker, a test asking whether there would be significantly different effects rather than significant effects.

[62]Mr Carter submits that such a situation as this can never require a further assessment. He submits that that is because the local planning authority cannot be permitted to modify significant elements of the permission already given under the guise of approving details submitted in pursuance of a condition. He reminds me for this purpose of the words of Sedley LJ in Smith. I am prepared to accept that for that reason it is logically very difficult, if not impossible, to envisage a situation in which, if there are no changes in the environment, there could be significantly different effects because of the content of the details approved.

[63]What, however, if there have been changes in the environment? As Mr Brown points out, a planning permission may last for many years. The local planning authority may have further decisions to take as to approval, for example, as in this case, where to permit the project to proceed might be said to have a significantly different effect, to use the test that I have suggested.

[64]Of course, unforeseen changes in the environmental effect of a permission do not require a further assessment where no decision from the local planning authority is required. But what is important, in my view, is that Barker could apply only if there is in truth a two stage process. I do not consider that concept appropriate to a situation in which details on some minor aspect require to be approved. It would, indeed, be strange if the need for a new assessment was triggered by the need to approve details that had, for example, little or no environmental importance. As a matter of domestic law, it is difficult to see what power the local planning authority would have to require a further assessment at that stage or to refuse approval in its absence. The case of R (Prokopp) v London Underground Limited [2004] 1 P and CR 31 makes it clear that much is left to the national authorities.

[65]In my judgment, applying the principles of Barker, I cannot rule out the possibility that a further assessment might be required in such a situation as this. I do not decide the case on the basis that that requirement could never arise, but it would be necessary for there to be truly a two stage process, involving real importance at the second stage, and then, only if a decision at the second stage would have the result that the project was likely to have significant effects on the environment from that envisaged. It would not necessarily require even then a new environmental impact assessment on all aspects of the matter. Paragraph 48 in Barker makes it clear that there may be just some aspects that require attention.

[66]The approvals required here related to existing trees and tree replanting, to drainage and to noise abatement measures. They were, in my view, genuinely matters of detail, and in my judgment they cannot, in terms of the decision in Barker, be described as the second part of a two stage process.

[67]I proceed on the basis, therefore, that a further assessment could sometimes, although perhaps rarely, be applied in a situation where approval of conditions is said to amount to a second stage, but I conclude that it was not in the particular circumstances necessary for this defendant to consider whether a further assessment was required. Even if I am wrong in that conclusion, I am satisfied that if they had answered that question they would, applying correct principles, have reached the only possible answer that no further assessment was required.

[68]In my view, having granted permission because the matter deserved argument, I shall dismiss the claim on ground 2. The claimant, however, has succeeded on one aspect of ground 1. But it remains to be considered whether the defendants and the interest party's submissions on delay require refusal of a remedy.

[69]The timetable was as follows. The second of the decisions was on 24th February 2006. Those associated with the claimant asked for clarification from the defendant, which was provided in an e-mail dated 2nd March. On 13th April the defendant was put on formal notice that judicial review was under consideration, a letter which was copied to the interested party. A pre-action protocol letter was issued on 21st April. A response to that was received on 13th May. The claim form was issued on 19th May. That was, therefore, just within the three month period, but it is submitted, on behalf of the defendant and the interested party that it was nevertheless not filed "promptly" in a situation where promptness was required. The period criticised was, in effect, the period from 2nd March until 13th April. The submission is made by the claimant that various information was sought from the defendant, advice needed to be taken, and it was a somewhat complex matter which justified the period up to 13th April 2006. In my view that, certainly so far as the defendant is concerned, disposes of the delay argument. I would not refuse permission.

[70]There is, however, an additional argument presented by the interested party. They acquired the site on 10th or 11th April 2006 and have expended large sums of money, although it is not clear precisely when those sums of money were expended.

[71]Part of the answer given by the claimant to that is that there had been certain telephone discussions between those who had been representing the claimant and other objectors and the interested party. I refer to a witness statement of Mr Martin Millmore of the Mineral Planning Group dated 22nd November. There is, in fact, a dispute as to when certain remarks were made, to the persons speaking on the telephone, by Mr Millmore and, indeed, by implication, who it was he spoke to on the particular occasion. I am not in a position to resolve that dispute, but, submits Mr Brown, even if one takes the later occasion, it was no later than 11th April 2006.

[72]What is, I think, not in dispute is that something along these lines was said to a representative of the interested party. The way Mr Millmore puts it was that local residents who objected were:

"... like rottweilers and would not let go, but simply sink their teeth in deeper as they considered that the decision to develop the quarry was fundamentally wrong."

[73]No doubt that was not a wholly polite way to describe the objectors, although I suspect that they would regard it as a back-handed compliment in the circumstances. In any event, it strongly suggests that the interested party were aware, even before the letter of 13th April, that they might face difficulties presented by objectors and they went ahead in that full knowledge. The dates are not entirely clear and it is not entirely clear when the third party spent its money.

[74]In my view, even if the interested party had been wholly unaware of the likelihood of the local residents objecting to what had been approved, the claimant would not be defeated by delay. But even if I were to be wrong about that, the additional information from Mr Millmore modified in the light of the dispute as to date, would seem to me to strengthen the claimant's position on that issue.

[75]The one ground on which the claimant does succeed is in relation to the trees; the lack of detail about the existing trees essentially. That is not in itself an onerous matter to rectify and could be rectified without the expenditure of huge sums of money. However, because the time limit for seeking approval has passed, success on that one ground prevents the interested party from taking advantage of the permission.

[76]Thus the claimant succeeds on the condition 5 part of ground 1, but fails in the ways I have indicated on other grounds. The ground on which they succeed is distinct. That particular decision can be quashed and, in my view, should be. The other claims must be either the subject of refusal of permission, as I have indicated, or dismissal of the application.

[77]Subject to any submissions, those are the rulings that can be incorporated, please, into an order that I give permission.

[78]MR BROWN: My Lord, just one matter arises from the terms of your Lordship's judgment. I am fairly sure that my note is correct and I ask my Lord to check it. I think you recorded that it was Mr Barrett -- sorry, Mr Carter who had suggested that the condition 8 was only relevant to visual aspects. I am fairly sure it was Mr Barrett who in fact made that suggestion. Just when you have transcript I ask your Lordship to double check that. In giving judgment you certainly attributed it to Mr Carter.

[79]MR JUSTICE CRANE: I certainly did and I do think I am right, but I may be wrong. Let me just see if I can check back. In one sense it doesn't matter desperately. (Pause)

[80]MR BROWN: Certainly, my Lord, it is my note that I have Mr Barrett making the submission that condition 8 has nothing to do with the condition per se. Perhaps I can just leave that.

MR JUSTICE CRANE: You are absolutely right.

[82]MR BROWN: Nothing turns on it, but I am sure Mr Carter and Mr Barrett would like --

[83]MR JUSTICE CRANE: No, I will attribute that to Mr Barrett. You are absolutely right about that.

[84]MR BROWN: My Lord, the second matter that I think -- although your Lordship has given judgment today and has said what he has said, I think it would be wrong for me not to draw it to your Lordship's attention at the moment and given the way that have you expressed your views, this was, as I understood, rather an after-thought and may not have much bearing on the overall outcome, but towards the very end, in dealing with the question of delay, you did indicate that compliance with condition 5 was not particularly onerous and not a particularly expensive one. My Lord, it may be the fault of all of us in presenting the case to your Lordship, but those who instruct me, and indeed I have approached this matter throughout on the basis, that there is a time limit for the submission of details of all of those matters. That time limit has now passed.

MR JUSTICE CRANE: I see.

[86]MR BROWN: It would no longer be possible to meet the requirement of condition 5. I don't know whether that would be disputed by the other side.

MR JUSTICE CRANE: Where does that appear?

[88]MR BROWN: My Lord, the point is that once the time limit in the beginning in the --

MR JUSTICE CRANE: I see, you mean once the excavation part of it -- once March 2006 has passed.

[90]MR BROWN: Once that time goes, the permission is dead. That's the point, my Lord.

[91]MR JUSTICE CRANE: Yes. Thank you for bringing that to my attention. I am plainly wrong about that. I mean, that was, as you may have understood, somewhat of an afterthought, but it didn't alter my view and it doesn't alter my view, but it does require to be corrected.

[92]MR BROWN: My Lord, I am grateful for that. I leave it to your Lordship as to how one goes about that, but I felt it would be wrong for me at this stage not to have made that point clear to your Lordship.

[93]MR JUSTICE CRANE: Thank you very much. I think what I will -- I think I've made it clear now that I have not altered my view as a result of that. Of course, I mean, it's apparent that I had misunderstood the position about that. I still don't think it made a difference. I make that perfectly clear. If anybody asks me to correct the judgment, I will correct it on that point.

[94]MR BROWN: My Lord, I am not asking your Lordship to correct the judgment, as long as the rider your Lordship has just placed upon it will now be on the record. It would be unfortunate if one ends up in the Court of Appeal as a result of something which your Lordship now knowing says would not have made a difference in any event.

[95]My Lord, there are two matters arising: one is costs and the other is appeal. Given your Lordship has delivered a split decision, may I just take a moment to take instructions on that?

[96]MR JUSTICE CRANE: Yes. What would you like to do? I certainly have other matters in my list today. I can put the case back somewhat.

[97]MR BROWN: My Lord, I suspect I will know whether I need a longer period of time, or whether I can do this quickly in about 30 seconds.

MR JUSTICE CRANE: Take those 30 seconds and see where you get to.

[99]MISS BICARREGUI: My Lord, might I take this opportunity --

MR JUSTICE CRANE: Just a moment while Mr Brown is on his feet. (Pause)

[101]MR BROWN: My Lord, in those circumstances, and in particular in the light of the point I have just made to your Lordship about condition 5, I do have an application for costs in this matter. We have succeeded on may be only one of the issues, but it is an issue which effectively will bring this permission to an end and therefore, in substance, we have achieved what we set to do out to do. Your Lordship may wish to take a view about whether we should have the totality of our costs or just a proportion. I leave that entirely to your Lordship's discretion. But, in essence, we have got to the point where we wanted to get to, albeit only on one ground. (Pause)

[102]MR JUSTICE CRANE: Yes, I appreciate we have people standing in. Do you -- let me see -- Miss Bicarregui, are you in a position to make submissions about costs? Tell me if you feel you are not able.

[103]MISS BICARREGUI: My Lord, I do have instructions on costs, that we don't resist the defence application for costs. We don't make an application there should be any apportionment of the costs.

[104]MR JUSTICE CRANE: I think what Mr Brown is saying is, may he, please, have his costs, or at least part of them bearing in mind -- is that right, Mr Brown?

[105]MR BROWN: My Lord, my primary position is that I should have the whole of them, but I stand here recognising that I have lost on a number of the issues.

MR JUSTICE CRANE: But at least half.

[107]MR BROWN: I should have at least half.

[108]MR JUSTICE CRANE: Now, so the application is for all of his costs, but if he doesn't get those at least part of his costs, bearing in mind he has succeeded in part. As I say, I quite appreciate that you are here in place of Mr Carter. Do you want to make submissions about that or does that place you in a difficult position?

[109]MISS BICARREGUI: My Lord, we don't dispute the fact that he should have part of his costs, but we do in relation to the ground 2 point. My instructions are that certainly a degree of the costs incurred relate to that matter and to that extent Mr Brown should not have all of his costs.

[110]MR JUSTICE CRANE: So you are happy to have made those submissions, as it were? You don't seek, for example, to have anything further submitted in writing or by Mr Carter? (Pause)

[111]MISS BICARREGUI: My Lord, my instructions have changed somewhat. My instructions now are that the council would like to make further submissions in writing on the issue of costs.

[112]MR JUSTICE CRANE: What I think is this. If Mr Brown wishes to put anything in more detail in writing he may, but it may be he has made his submissions. I rather gather he has. Can I just ask. Mr Buttler, are you in the same position?

[113]MR BUTTLER: I am not instructed to ask for costs and given your Lordship's indication that our position was largely sweeping up, I am not sure that I am entitled to.

[114]MR BROWN: My Lord the application is not made against Mr Buttler, it is made against the defendant and the defendant's position is here. I don't anticipate Mr Buttler advancing an application for costs against me and the ordinary law would be that a second party would not expect to get them any way.

[115]MR JUSTICE CRANE: I think then, as far as the interested party is concerned, there will not be any costs ordered either way. As far as the defendant is concerned, it seems to me that it would be fair to allow Mr Carter to put any submissions in writing by the close of play on Tuesday. (Pause)

[116]MISS BICARREGUI: Yes, that is fine.

[117]MR JUSTICE CRANE: Yes. Mr Brown, you are happy that I make a decision on the papers?

[118]MR BROWN: Yes, my Lord. You have my submissions. I have been about as fair as I can be in the circumstances.

[119]MR JUSTICE CRANE: Yes, you have. Very well. Permission for defendant's counsel to submit written representations in relation to costs not later than 4.30 on Tuesday of next week, which is the 28th. Then I will indicate my decision in writing.

[120]MISS BICARREGUI: Grateful, my Lord.

[121]MR JUSTICE CRANE: I think with that in mind, it might be worthwhile postponing submission of the order until I have dealt with that. I will try and notify that, the decision, to the parties very shortly after that.

[122]MR BROWN: My Lord -- sorry, my Lord, if that is costs, there was the additional issue of permission to appeal. I preface this on the basis that if we are right about the effect of condition 5, then there would be no point in appealing anything else, because we got effectively what we set out to get. But I have yet to hear what the defendant and interested party have to say about that. I make this application as much as to protect our position, because, as your Lordship has indicated, you have given decisions on what are effectively separate and discrete decisions. They were contained in separate letters. Therefore, although I have succeeded on one decision, that doesn't preclude me, in my submission, from appealing. In those circumstances I do ask for permission to appeal both on the condition 8 point and on the ground 2.

[123]My Lord, so far as ground 2 is concerned, there is, in my submission, a point of considerable public importance here. It is a new and evolving area of the law. It is one in which your Lordship has given very helpful guidance, but it may ultimately be a matter that does need to go further, possibly back to Europe, to be resolved. I make the application there simply on the basis that there is a point of general importance.

[124]My Lord, so far as condition 8 is concerned, it is always an invidious task to try and suggest to a judge that there may be a reasonable prospect of success, but there are two aspects of your Lordship's judgment on condition 8 that I would identify which give me a basis for seeking permission to appeal on those grounds.

[125]The first is that while your Lordship has indicated that MPS2 does not require BS5228 to be the basis on assessment, your Lordship will recall that the submission that I made, I think in reply very much to what my learned friends had said, while I recognise it didn't say it is the only basis, it is the nominated one, and if a decision is going to be made not to adhere to that guidance it has to be made on a proper understanding of the policy framework. The point that I make, I hope to your Lordship at the time, was that it is quite clear that the defendant's decision to accept not something other than BS5228, while it might be in the range of lawful responses, was made on the wrong policy basis. In other words, it was made on the basis that the defendant entirely erroneously thought that MPG11, and all the criticisms of BS5228 which are in MPG11, was still extant guidance when in fact that was not the case. That is simply by taking into account an entirely irrelevant consideration in deciding that.

[126]The second matter, my Lord, one of the other factors that led your Lordship to conclude that this is the second limb of condition 8, the BS4142 point, one of the matters that persuaded your Lordship that active measures had been taken. My Lord, the whole point about tonal correction is that it recognises that, although the noise level in actual terms may be exactly the same, parts of that actual measurement may in reality be far more irritating and therefore the use of actual measurements -- I do not address your Lordship on that.

[127]My Lord, I make -- in those circumstances, I ask for permission to appeal against both aspects of your Lordship's judgment.

[128]MR JUSTICE CRANE: Thank you. I can just be brief. I am going to refuse permission to appeal on this basis. First of all, as to condition 8, I accept that there is a strong indication that the realisation of the replacement of MPG11 by MPG2 had not been appreciated. But I indicated in my judgment, and I certainly take the view, that that was not -- even if that is wrong, it does not affect the way in which condition 8 should be interpreted or applied. As far as the actual measurements point is concerned, again, because of the relationship between condition 8, the presence of other conditions, I don't regard that as an appealable point. It seems to me that this -- the condition 8 argument was essentially a matter of the interpretation of the particular condition. I don't see a real prospect of success.

[129]As to ground 2, I entirely accept, and it's the reason I gave permission, that it is an important area which is not entirely easy, but in the end the conclusion I reached, that this was not the second stage of a two stage process, seems to me to involve an interpretation of particular facts and circumstances of this case. And on that basis I don't regard there as being a real prospect of success in this case, although in other cases there may be some very real questions in relation to the directive of the two stage process. So for those reasons I shall refuse permission but I will watch with interest to see if anything else happens.

[130]MISS BICARREGUI: My Lord, I do have instructions to ask for permission to appeal in relation to ground 1 and the condition 5 point. My Lord, I make those submissions in the knowledge that the decision you have taken on that ground is very fact specific and also in the knowledge that you said even if the condition were broadly construed rather than narrowly construed. The reason I make the submission is similar to the position of Mr Brown, that I am seeking to protect the position of the council in this respect. I don't have legal submissions on why in terms of the merits this should be granted. As I say, it is primarily a protection of the council's position and it does have serious consequences as the permission now falls.

[131]MR JUSTICE CRANE: Thank you. Yes. It has been said by counsel who has attended today in relation to condition 5, as she says I think the condition 5 decision was very fact specific, or, perhaps, to put it slightly differently, very much depended on the interpretation of particular conditions and I don't regard there as being a real prospect of success so I shall refuse permission. Once the costs issue has been dealt with, perhaps I could have a form of order that I can then initial.

[132]MR BROWN: My Lord?

[133]MR JUSTICE CRANE: Perhaps I can have a form of issue that I can initial once the costs decision has been made.

[134]MR BROWN: Would your Lordship like me to draft one?

MR JUSTICE CRANE: Yes.

[136]MR BROWN: Certainly, I can do that once your Lordship has indicated what the --

MR JUSTICE CRANE: Yes.

[138]MR BROWN: So be it, my Lord.

MR JUSTICE CRANE: You can await that and then submit it.

[140]MR BROWN: Sorry?

[141]MR JUSTICE CRANE: I said you can await my decision on costs and then, please, submit a form of order.

[142]MR BROWN: Yes.

MR JUSTICE CRANE: I am very grateful to counsel in the case.

Ruling on costs

[1]I delivered judgment on 24 November 2006. Mr.Paul Brown applied for an order for costs against the Defendant. Counsel who had represented the Defendant at the hearing, Mr.Martin Carter, had not been able to be present and counsel appearing for the Defendant did not feel able, understandably, to make adequate submissions. I therefore gave Mr.Carter an opportunity to make written submissions.

[2]Having read Mr.Carter’s written submissions, I made a written ruling on costs on 29 November (subject to any submissions by Mr.Brown on one aspect). It transpired that Mr.Carter’s submissions had not, through an oversight, been supplied to Mr.Brown. In the light of written submissions by Mr.Brown dated 30 November I revoked my ruling on costs. I now make a revised ruling.

[3]Mr.Brown first submitted that no application for costs had been made on behalf of the Defendant and that the permission given did not extend to such an application. While I accept that no such application was made, I regard the permission as extending to the submissions made by Mr.Carter and in any event, if it is necessary, I extend the permission I gave to include such an application and related submissions.

[4]The Interested Party is not affected by any application for costs.

[5]This ruling should be read with my judgment. There were two grounds. The first related to approvals for the purposes of conditions 5, 7 and 8. The second related to the need for a further environmental assessment in relation to the approvals generally. The Claimant succeeded only in relation to condition 5 under ground 1. although Mr.Brown argues correctly that the effect of success on that issue was sufficient to have a profound effect on the Interested Party.

[6]Mr.Brown sought the Claimant’s costs or, in the light of the Claimant’s limited success, a partial order.

[7]I have now read Mr.Carter’s submissions. He submits that the Defendant should pay no more than 25% of the Claimant’s costs. He seeks a modified order in relation to the Claimant, who is funded by the LSC.

[8]Mr.Brown now submits that the fairest order would be for the Defendant to pay half the Claimant’s costs.

[9]As will be apparent from my judgment, the condition 5 issue was relatively short and straightforward in comparison at least with the condition 8 and Ground 2 issues, both in terms of preparation and in terms of court time. However, as I have said, the effect of success on that issue was sufficient to have a profound effect on the Interested Party. The Claimant in effect won.

[10]I now conclude that there should not be orders for costs in favour of both the Claimant and the Defendant. There should be a single order, reflecting, I consider fairly, a balance between overall success on the part of the Claimant and the fact that success was based on one limited issue. I agree with Mr.Brown’s ultimate submission.

[11]There will be an order that the Defendant pay half the costs of the Claimant. There will be no order in favour of the Defendant. There will be an order for any assessment required of the Claimant’s costs for public funding purposes.

[12]I direct that if any transcript of my judgment is prepared, this ruling be appended to it.

[13]I also direct that an order now be prepared for my signature.