O2(UK) Ltd v Secretary of State for Communities & Local Government [2009] EWHC 522 (Admin)

Case No CO/9804/2006[2009] EWHC 522 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 2 March 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
O2(UK) LIMITEDClaimantv
Between
THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantsTHE LONDON BOROUGH OF ISLINGTONDefendants
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)
Mr Christopher Boyle (instructed by Lawrence Graham) appeared for ClaimantMr James Strachan (instructed by Treasury Solicitors) appeared for First Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: This is a claim pursuant to section 289 of the Town and Country Planning Act 1990 against a decision of an Inspector upholding an enforcement notice issued by Islington Council as long ago as November 2005. It is unfortunate that this claim has taken a very long time to reach a hearing. That may be because of the pressures on this court at the time that it was originally lodged, which was on 21 November 2006.[2]Initially, the claim relied on one ground, and that was a question of construction of the relevant paragraph in the Schedule to the Town and Country Planning (General Permitted Development) Order 1995, as amended ("GPDO"), it being said that the claimant enjoyed rights under that to carry out the development or, as now would appear, developments in question. It seems that they believed that they had, as they put it, a knock-out point in relation to that construction argument, and hoped that the Secretary of State would concede. As will become apparent, not only did they not have a knock-out point, but, in my judgment, they were wrong in their attempted construction of the relevant provision. Accordingly, it was necessary for them to raise a second ground. But since that was raised somewhat late in the day, arguments were put forward that they should not be permitted to rely upon it, and in due course that matter came before Sullivan J (as he then was). He decided that they should be entitled to add that ground. That was a decision made in December 2007, and it has unfortunately taken over a year for the claim to be heard.[3]The claimants, as their name perhaps to people who know these things suggests, are what is described as an Electronic Communications Operator within the meaning of the paragraphs of the relevant Schedule to the GPDO. They wished to erect some electronic communications equipment on a building at New Wharf Road, London N1 within the area of the London Borough of Islington, which is the local planning authority.[4]The equipment in question consisted of pairs of three antennae and three cabinets. I say "pairs" because there were two forms of equipment which were involved: one is called "2G", which if I correctly understand it (I need not go into detail) had existed for some time; the other was "3G", which was said to be superior, and one could operate mobile phones on either 2G or 3G. But 3G was perhaps more efficient, certainly more desirable, so it is said. Accordingly, the development in question was for three antennae plus two cabinets for the 2G; and three antennae plus two cabinets for the 3G. Each was erected at the same time, as one might expect, because it was obviously a question of approaching it in a cost-effective manner, and that was the most sensible way of doing it.[5]In order to be able to avail themselves of the permitted development under the GPDO, the claimants had to bring themselves within the somewhat complicated and detailed provisions in Part 24, Class A, which refers in A itself to:
"Development by or on behalf of an electronic communications code operator for the purposes of the operator's electronic communications network in, on, over or under land controlled by that operator or in accordance with the electronic communications code, consisting of- (a) the installation, alteration or replacement of any electronic communications apparatus, ... (c) development ancillary to radio equipment housing."
[6]That is the general permitted development. But A.1 sets out a long list of developments which are not permitted. They include, in connection with radio equipment housing which is what this claim is essentially about, the following:
"A.1. ... (l) in the case of the installation, alteration or replacement of radio equipment housing- (i) the development is not ancillary to the use of any other electronic communications apparatus; (ii) the development would exceed 90 cubic metres or, if located on the roof of a building, the development would exceed 30 cubic metres; or (iii) on any article 1(5) land, or on any land which is, or is within, a site of special scientific interest, the development would exceed 2.5 cubic metres, unless the development is carried out in an emergency."
That is relevant only because of what is set out in a relevant Circular, which is Circular 4/99, which in fact had been overtaken, and the relevant provision had not been replaced by the time the Inspector made her decision. But nonetheless, it gave, it is said, an indication as to how the relevant provisions to which I will come should be construed.[7]The relevant provisions are in paragraph A.2(4), and they refer to Class A development.

(b) :

"on any other land and consisting of the construction, installation, alteration or replacement of a mast; or of an antenna on a building or structure (other than a mast) where the antenna (including any supporting structure) would exceed the height of the building or structure at the point where it is installed or to be installed by 4 metres or more; or of a public call box; or of radio equipment housing with a volume in excess of 2.5 cubic metres; or of development ancillary to radio equipment housing- is permitted subject, except in case of emergency, to the conditions set out in A.3."
That is the primary provision with which we are concerned; it limits the scope of the general permitted development which arises under Article A.[8]One sees that the relevant conditions refer to the need to apply to the local planning authority for a determination as to whether the prior approval of the authority would be required to the siting and appearance of the development, and there are various provisions about what documentation has to be included with the application. The local planning authority has to decide within a period of 56 days whether it would approve or not of the precise nature of the development in question, in particular of course the siting and so on, and whether it offended against general principles of planning.[9]What happened in this case was that originally in November 2004 the claimants made an application to the local planning authority seeking to be able to carry out development which consisted of the siting on the roof of the building in question of antennae and equipment housing. The application was described as an application under condition A.2(4) of Part 24 of the 2nd Schedule to the GPDO, and a plan was attached showing the proposed installation and the necessary fee.[10]The reaction of the local planning authority was unfavourable. The decision in question was initially on 26 November that it was permitted development, but prior approval was required. What is described in the details in that response is that it was for the erection of four antennae, each having a height of 2.75 metres located on the roof of the building. Eventually, on 21 December 2004, the Planning Authority stated that it took the view that prior approval was required and that approval was refused because the proposal would be unacceptable as the antennae were visually intrusive and created an impact on the building of the adjoining conservation area, and the proposed siting and design of the antennae was contrary to a relevant policy. Unfortunately, the documentation before me does not contain any subsequent page of that decision notice, and so it is not known whether there were further objections on planning grounds. But certainly subsequent history would appear to support the view that Islington's concern was with the antennae on the roof rather than anything else.[11]Having received that rebuff, the claimants decided that they would approach the matter in a different way. They were required, as a condition of the licence that they held in connection with their ability to make use of their equipment, to notify the planning part of the Council of any proposed development, whether or not it was a requirement under the GPDO that they should make an application.[12]On 27 January 2005, they sent a licence notice indicating that they were obliged to advise the Council of their intention to carry out the development, which involved three panel antennae, two equipment cabinets and development ancillary thereto. That notice related to the 3G equipment. Subsequently, in a licence notice of 1 March 2005, they sent to the Council information in relation to development for the 2G, and that was identical in the sense that it was also for three panel antennae, two equipment cabinets and development ancillary, although the measurements of the various cabinets were not identical, and it was, as one can see, an approach which related to two different matters, certainly so far as the claimants were concerned. It does not seem that the Council responded to the letter of 27 January, but they did to that of 1 March, and by letter of 2 March acknowledged receipt of it. Then by letter of 17 March, which referred only to the notice of 1 March, the Council said this:
"On the basis of the details submitted the proposal is not permitted development, and I must advise you that a formal application for planning permission is required if you wish to pursue this matter."
[13]The claimants, no doubt on advice, took the view that the Council was wrong, that they were permitted to carry out the relevant developments, and in fact did so. The Council eventually, in October 2005, wrote a letter, following, it would seem, some other correspondence which I have not seen, saying, after referring to the assertion that planning permission would not be required because it was not unauthorised development:
"However, as was sent out in the above letter, the host building has been found, in fact, to be under 15 metres in height. Two masts have been erected within 20 metres of a highway. The development does not, therefore, benefit from permitted development rights. Specifically, the development fails to meet the requirements of Class A1 of Part 24 of Schedule 2 to the [GPDO]."
They said that the unauthorised equipment should be removed, and concluded:
"If you fail to comply with this time frame [that was within one month] the Council will expedite formal enforcement action, including the issuing of enforcement notice requiring the removal of the masts. Any further action will be taken without further correspondence with you."
[14]Thus, what the Council appeared from that to be concerned about was the masts on the building, rather than any of the other equipment, and certainly the basis for the proposed enforcement action was wrong. It was not and has never been pursued; it could never have been pursued because it was a totally false basis for taking enforcement action. However, the enforcement notice in question was served on 4 November 2005. The alleged breach of planning control set out in the notice was- "Without planning permission, on the roof of the property, the erection of three telecommunication pole-mounted antennae (the position of each antennae is shown marked with a cross on the attached plan) plus associated housing equipment (the associated housing equipment is outlined in red on the attached plan)."[15]Schedule 3 sets out the reasons for issuing. It said:
"The unauthorised development by virtue of its size, design and siting, forms an incongruous feature that fails to preserve or enhance the character and appearance of both the host building and the wider locality. The unauthorised development is, therefore, contrary to [various policies in Islington's Unitary Development Plan]."
The requirement was to remove the three telecommunication pole-mounted antennae and the associated housing equipment from the roof of the property within two months.[16]That notice was wrong on its face inasmuch as, in fact, there were not just three pole-mounted antennae, there were six. The reason why there were six was because there were two pairs of each: one for the 3G; and one for the 2G. The Inspector in due course, recognising that, indicated that she was able to deal with it because there was no misunderstanding: the notice sought to attack the whole of the development on the roof so that it should read "The erection of three pairs of telecommunication pole-mounted antennae". In fact, originally the information and drawings given to the Council suggested that there were to be six separate poles upon which the relevant antennae were to be fixed, but in due course it was decided that it was possible to limit to three poles, and put two antennae on each pole, and hence the mistake that was made by the Council, although it is fair to point out that, in its letter in October, to which I have already referred, the Council referred only to the notice given on 1 March and not to that given on 27 January.[17]The claimants therefore sought to appeal to an Inspector. They decided that it was not necessary to ask for a full inquiry, and that the appeal could be dealt with through the more informal route of written representations. They lodged a notice of appeal, which had, as one would expect, annexed to it the grounds of appeal. It stated in the grounds that when the notification was sent for the proposed 2G, the lawfulness of the works was not questioned, and that in respect of the further notification in respect of the 3G -- I think in fact it would seem that it may be that the two were the wrong way round in those grounds but it perhaps matters not -- there was no specific assertion as to why the development was regarded as unauthorised.[18]They then went on to deal with the ground that matters most for the purposes of this claim, that is ground (c) of the appeal, that being the ground that asserts that planning permission was not needed for the development in question. This is said:
"The proposal constitutes permitted development under Class A Part 24 of Schedule 2 ... Under Class A1 and A2(4)(b) [antennae] less than 4 metres in height and equipment cabinets not exceeding 2.5 cubic metres is considered lawful. The building is not listed and does not fall within any Article 1(5) land."
[19]None of the cabinets is more than 2.5 metres. Indeed, each is considerably less. If one looks at the 2G and the 3G separately, even if one adds together the cabinets within them individually, again they do not exceed 2.5 metres. One only gets to more than 2.5 metres if one adds together all the cabinets in both the 2G and the 3G. I think the total, if I remember correctly, is something in the order of 3.1 cubic metres. So there is then an excess. It is only if there is such an excess that one gets into A.2(4)(b), otherwise, there would be no question but that this was permitted development, without the need to comply with the relevant condition of having to make an application and obtain the approval of the local planning authority.[20]When they were notified of the setting up of the appeal, the claimants submitted a more detailed document identifying the grounds upon which they wished to rely. In relation to ground (c), they asserted that they considered that ground as primary to the appeal. They referred to PPG8, which dealt generally with the approach that should be adopted to telecommunications permitted development. They said this in paragraph 5.4.4:
"The development subject to this Appeal is located on a building, with a flat roof, which is less than 15 [metres] in height. Therefore, in considering the lawfulness of the development in situ, regard is given to Part 24 [and the relevant classes]."
The point is made at the end of that that each equipment cabinet had a volume of less than 2.5 cubic metres.[21]So the generality of their case clearly was that it was necessary to look, as they believed to be the correct approach, at each individual cabinet, and that only if an individual cabinet exceeded 2.5 cubic metres did the matter come within A.2(4)(b). Again, it is not perhaps spelt out in the detail that one might have expected had they appreciated that this was a matter in issue because, as they appreciated, they did not need more than that whether or not they were to be regarded as one or two separate developments, because if all was well for them on the basis that it was only if an individual cabinet exceeded 2.5 cubic metres, it did not matter whether one looked at the whole (that is to say the 2G plus the 3G), or whether one looked at the 2G independently of the 3G. Certainly, so far as they were aware, the Council was not taking any particular point on that aspect.[22]In due course, the Council served its submissions.

(c) in these terms:

"The appellant's statement seeks to argue that the proposal constitutes permitted development ... Whilst it is accepted that antennas as installed are considered to be less than 4 metres in height and equipment cabinets not exceeding 4 metres, the council argues, such equipment is unlawful."
Pausing there, it is unfortunate that they talk about equipment cabinets not exceeding four metres. I can only assume that that was a mistake for 2.5 cubic metres, and I suspect it was probably read in that way, because there can hardly be a cabinet of 4 metres, although I suppose it is possible that one could have a cabinet of more than 4 metres in height, but quite where the Council would have got that from I do not know. However, that is what was said in that paragraph. It goes on:
"This is because current planning framework includes well-established policies to protect the countryside and urban areas -- in particular, our national parks, areas of outstanding natural beauty, conservation areas and sites of special scientific interest."
Pausing there, I suppose conservation areas could be relevant in Islington, but not, one suspects, the other bits. It goes on:
"The installation of any telecommunications mast in such areas is subject to a requirement to submit a planning application. The main safeguard is provided through what is known as the 'prior approval procedure'. That gives the local planning authority an opportunity to consider the siting and appearance of this type of apparatus. This involves all telecommunications masts that do not require an application for planning permission to be made. Despite the fact that prior approval application was submitted for the installed telecommunication equipment and subsequently judged to require the benefit of prior approval, the operators proceeded with their installation. This approach is considered to be contrary to the tenet of the GPDO under Class A.3(7)(b) and (c) of Part 24 of the aforesaid Order. The latter stipulates that 'the development shall not [begin] before the occurrence of one of the following ... "
There are then set out the time limits in question. It goes on:
"This is further underpinned in Annex 1 of PPG8 where it states that 'an application under paragraph A.3 is neither a notification nor an application for planning permission. An application under the paragraph is an application for the authority's determination concerning prior approval of siting and appearance. Where permission is granted under Part 24 subject to a condition that a prior approval application to the local planning authority is required, failure to comply in full with that condition will mean that the development is not authorised under the Order, and may be subject to enforcement action by the local planning authority'. Accordingly, the Council argues that the development does constitute breach of planning control and the appeal should fail under ground C."
[23]The problem with all that is that it totally fails to deal with any of the relevant points. It is difficult to see what relevance there is in the assertion that the policies are there to protect the countryside and urban areas, because it is not suggested, as I understand it, certainly no evidence is before me, that the site in question came within any of the areas under 1(5), which are those which are material for those purposes. The only reason it could come within A.2(4) was if the housing exceeded 2.5 cubic metres, and that nowhere is asserted by the Council, certainly not in this response.[24]Equally, contrary to the Council's approach, there was no prior application that was material for the purposes of enforcement. There had been back in November a prior application, but that was for a different development. It was not for those which were in due course carried out based upon the two notices on 27 January and 1 March respectively. There were some variations, the relevant one being, as I understand it, that instead of the independent masts, that is three for each, there were two antennae placed on a single mast so that it was reduced to only three masts for the two developments, which one would have thought, on the face of it, was a beneficial variation of the original proposal. Be that as it may, the whole basis, as far as one can see, of the Council's opposition to ground (c) was totally missing the mark. Indeed, the whole of the Council's approach to this matter is not one which in any way covers it with glory. It has not attended, and so any criticisms have not been able to have been specifically dealt with, but it seems impossible to deny that it has not dealt with this in a very satisfactory manner.[25]It follows that the claimants had no reason to believe that there was any indication from the Council's point of view that it was going to rely upon the cumulative square metreage of all the cabinets housing the equipment. Indeed, there is nothing in the way the Council had approached the matter to suggest that they were intending in any way to take that point. It is true that, in its correspondence in the material that was before the Inspector to which she refers and to which I will draw attention, the claimants had described this as, it would seem, a development, in the sense that they had approached it on the basis that this appeared to be, for their purposes, a single development -- at least that was the conclusion reached by the Inspector.[26]The reality, as I see it, is that the claimants did not think it mattered and were not concerned to go into any detail as to whether this was truly to be regarded as a single or more than one development. The first inkling that there might be an approach which made important the cumulative square metreage came on the site visit. At the site visit, the Inspector asked for measurement of each of the equipment cabinets, and indicated that those measurements ought to be agreed. When it came to the smallest cabinet (there was one very small cabinet which housed some extra electrical equipment), the appellant's representative (now looking at the Inspector's statement) said that there was no need to measure that one as it was clearly under 2.5 cubic metres. The Inspector continued:
"At that point it became clear to me that there was a difference of opinion as to whether the volume limitation was to be applied to each individual cabinet or whether it should be applied to the cumulative total. I did not 'invite' submissions on the interpretation of paragraph A.2(4)(b) ... but I did say that if the Appellant wanted to make a further written representation on this matter then I would accept it."
[27]The statement from the claimant's representative who attended at that site visit says this:
"I recall that the Inspector stated that she considered that it was necessary to measure all of the cabinets to see if they added up to more than 2.5m³. I said that the limit was per cabinet not cumulative. I mentioned Circular 4/99. The Inspector did not appear familiar with that document. The Inspector indicated that she thought the cumulative total could determine the site's lawfulness. We measured all four cabinets on the roof. She did not, at that time, state whether she meant cumulative per site or per exercise of permitted development rights. Indeed the matter was not discussed further until the end of the site visit when the Inspector stated to me and the Council's representative ... that as there was a different interpretation ... she would be willing to receive representations on this point and Circular 4/99 advice to which I had referred."
[28]A statement of Mr Early, who was the senior implementation manager of the claimants, says that the 2G and the 3G were a separate exercise. They were served by physically and functionally separate sets of equipment transmitting different frequencies in a completely different manner, and that they were run separately by the claimants. Accordingly, they were and should be regarded as two separate developments, and indeed separate licence notification procedures were carried out, as we know: one at the end of January; and one at the beginning of March for each of them. Had the claimants appreciated that the Inspector was going to look at both together -- that is the cumulative square metreage of all the cabinets -- they would have made submissions in a different form. Certainly, they would have required the basis of their claim to be taken into account.[29]So far as the Circular 4/99 is concerned, that is a reference to the guidance given on that in appendix B, which is a summary of the main telecommunications permitted development rights. It sets out the various rights, but adds one or two comments or notes upon them, and it is one of those notes which is relevant. There is reference to the provision which I have already referred to, which is now in A.1(l), to the volume of housing not exceeding 90 cubic metres, or if it is installed on the roof of a building, 30 cubic metres, and then there is this note:
"There is no cumulative limit on the volume of radio equipment housing which can be installed on an individual site or building. Any installation of radio equipment housing which is in excess of 2.5 cubic metres is subject to the prior approval procedure summarised at (j) below." (j) simply summarises what is in A.2(4)(b). The reason for the note is obvious. It could no doubt have been argued that (l), as it now is, meant that there was an overall limit of 30 cubic metres. We remind ourselves of what is said in (l) (as it now is, but it was then (k) but that matters not): "(l) in the case of the installation, alteration or replacement of radio equipment housing- ... (ii) the development would exceed 90 cubic metres ..."
[30]It seems to me obvious that the first sentence of that note to which I have referred was to make it clear that the 90 or 30 metres was not an overall limit, but was only a limit for any individual development in question, although of course if it exceeded 2.5 cubic metres, then there was a need for the condition to be met. That is what the second sentence is saying: "Any installation of radio equipment housing which is in excess of 2.5 cubic metres is subject to the prior approval" etc. What the note does not say is that the cumulative approach is not applicable in considering the 2.5. One has to consider whether the true construction of A.2(4)(b) is, as is asserted, namely that it only relates to the individual size of each individual cabinet.[31]The claimants believed that that note is an indication of what is, in their submission, the clearly correct approach to A.2(4)(b). They sought to pray in aid a decision given by Jackson J in a claim made in 2005 by one Jacqueline Nike in relation to a development in Pendle in Lancashire. One of the points made in that judicial review was that the approach ought to have been cumulative in the sense that the development in question in that case involved three cabinets of a total volume more than 2.5 cubic metres. I was originally referred to that on the basis that it was a decision of this court, through Jackson J who refused permission, and that one of the grounds upon which he relied in refusing permission was that that was wrong, and that it was not and should not be a cumulative approach. The refusal of permission was on the papers. Such a decision can never constitute a decision which can be regarded as even persuasive in any subsequent case. Indeed, it is one which clearly ought never to be relied on or directly referred to in deciding a subsequent case.[32]However, the claimants have sought to rely upon a statement produced in connection with that claim by a Mr Foster, who was the central acquisition and planning manager of the claimant (the development in question in that case was one of the claimant's) in which he said, referring to the Mobile Operators Association of which the claimants were a member, that MOA's interpretation of the limitation was that it was per box, not per exercise of rights. But he recognises that there was a contrary view expressed by planning consultants in a document produced which was part of the consultation exercise carried out by the Secretary of State in connection with the drafting of the relevant provisions of the GPDO. Sadly, for whatever reason, the Secretary of State, in presenting the relevant order, did not make it as clear as she ought to have done, because recognising that there was this contrary view, it would have been far more satisfactory had the position been made clear beyond any doubt, because one has to conclude that there is indeed an ambiguity.[33]It seems to me that it is not only consistent with the wording of the relevant sub-paragraph, but also accords with the sense of the purpose behind the provision that it should be read as extending to the totality of the housing equipment which is to be put in place in any particular application. It is possible to identify absurdities whichever way one approaches it. Thus, for example, it would be possible for the claimants to house their equipment in one single cabinet which might be internally divided but looks like one single cabinet. If that was over 2.5 metres, then all that is necessary to avoid the impact of the conditions under the paragraph is to divide it up into two or more, each of which is less than 2.5, but place them next-door to each other, so that the effect for planning purposes is precisely the same whether one large or more than one smaller.[34]Equally, looking at it from the other angle, it would be possible to avoid the need, if the cumulative in the single one is to be regarded as the appropriate test, simply to divide any application (maybe artificially) into two. In this particular instance, there is no apparent artificiality because there is the 2G and the 3G which are to be regarded separately. No doubt, they have some common features, and it may be they even have some common feeder or equipment which is relevant to each, I know not, but it is difficult to say that the distinction is, on the face of it, an artificial one. Whether a totally artificial distinction in an attempt to avoid the provisions would work is not for me to say because it does not arise in the circumstances of this case. But it is possible that it would not, with an analogy of some of the cases involving environmental impact. For example it is clear that one cannot slice up a development which would, if one looked at it as a whole, qualify for a environmental impact assessment in order to avoid those obligations. It may be that the same principle could, if it was clear that there was a totally artificial distinction being drawn, apply here. But I do not need to decide that matter for the purposes of this claim.[35]Mr Strachan has pointed out that, by virtue of the Interpretation Act, in statutory provisions (and that of course includes orders) the singular is to be taken to include the plural. There has been some detailed argument in the skeletons as to the circumstances in which it is possible to indicate that the singular means singular, and it was suggested at one point that the use of the indefinite article might achieve that, so that if "a" housing was referred to that might indicate the singular.[36]I think little of that argument because, as a matter of English language, it is often difficult not to use the indefinite article in relation to sensible discussion of what is or is not in issue: for example, there is reference to a mast. You could hardly talk about "mast" without identifying it and it does not stop it being singular.[37]Mr Boyle, for his part, suggests that if one looks at the language used in other paragraphs, it is open to the draftsman, as he demonstrates, to make clear when he is talking about cumulative. All bar one of those paragraphs cover cases where there is a need to identify cumulative approach in relation to what is already there, namely development that already exists independently of that which is being put into effect. The only one that is different is the one I have already referred to, (l), and that is the exceeding 30 cubic metres, and that clearly relates to the single development. The point made by Mr Boyle is that the word "development" is used, and that therefore it is clear that one is looking not necessarily at the individual parts but at the development as a whole. The difficulty with that is that A.2(4) also talks about development, and then identifies what is contained in the development. Radio equipment housing with a volume in excess of 2.5 cubic metres means what it says; that is to say, the extent of the housing of the radio equipment which is included as part of the development in question.[38]I am bound to say that it seems to me that that is the natural meaning of the words used, and as I have already said, it accords with what one would divine to be the purpose of the provision in question, namely the attempt to avoid, without consideration by the planning authority, a particular volume of development on a building, whether it be the antennae, masts or the associated equipment including the housing to that equipment.[39]That being so, I have no doubt whatever that the true construction of the paragraph is as Mr Strachan submits, namely that it applies to the particular development. Let us see then how the Inspector came to deal with this point. Before finally going there, I should perhaps just refer to the submissions that were made as a result of the Inspector deciding that she would read any such submissions. That made by the claimants was, so far as material, to reassert their claim that the 2.5 cubic metres referred to individual and not to cumulative, and they read Circular 4/99, to which I have already referred, in that way. They concluded:
"The individual equipment cabinets do not exceed 2.5 cubic metres in content.

(b) "

[40]Since that was their claim, and since that was the main basis upon which they were claiming, it did not matter so far as they were concerned whether one looked at this as a development as a whole (the 3G and the 2G together) or whether one looked at them separately. They did not realise, particularly in the light of the way the Council approached the matter, that there was a risk that the Inspector would look at them as a single development. That is their claim. In fact, what the Inspector did was to say as follows:
"5. The Appellant says that an application for prior approval is not required in this instance as applying the limitations set out in paragraph A.2(4)(b), the height of the antennas does not exceed 4 metres and the volume of the equipment cabinets does not exceed 2.5 cubic metres. I agree with the first of these propositions but not the second. Measurements taken and agreed during my visit to the site indicate that there are two equipment cabinets of 1.112 cubic metres, one cabinet of 1.219 cubic metres and one of 0.167 cubic metres giving a total in excess of the 2.5 cubic metre limit specified in paragraph A.2(4)(b). I am aware that the Appellant is of the view that the volume limitation should be applied to each individual cabinet rather than to the cumulative total but I do not agree. I consider the GPDO limitation applies to the development as a whole and that “radio equipment housing” relates to the total volume of housing required for the equipment necessary for the single development being undertaken. Paragraph A.2(4)(b) says "housing" which I take to be read in the plural; that is embracing all the housing/cabinets needed for that particular development. 6. I do not see this interpretation as being in conflict with the note to paragraph 5(h) of Appendix B to superseded Circular 4/99 ... I interpret this as saying that there is no cumulative limit on the volume of radio equipment housing from a number of different developments on the same site or building, but that the GPDO still places a limit on the volume of housing for any one development without going through the prior approval procedure and that limit is 2.5 cubic metres. In other words, "
Any installation of radio equipment housing ..." in the former Circular referred to the total installation of cabinets connected with the single operational development taking place. 7. There is no indication that the telecommunications apparatus was installed other than as a single piece of operational development despite the two separate licence notifications for the 2G and the 3G systems. Each of the three poles on the roof supports one 2G and one 3G antenna; they are not mounted on separate poles. Moreover the Appellant’s statement refers to a single development “At roof level 6 no. panel antennas and associated equipment housing remains in situ. The development sought to combine those works subject to notifications sent to the LPA on 27 January 2005 and 01 March 2005 respectively” (paragraph 3.3). 8. I find that the radio equipment housing comprised in the development exceeds 2.5 cubic metres and that the development was thus subject to the conditions set out in paragraph A.3 of Part 24 as specified by paragraph A.2(4)(b) which includes the requirement that an application for determination as to whether the prior approval of the authority was required for the siting and appearance of the development is made before beginning the development."[41]Mr Strachan submits that the Inspector was clearly entitled to regard this as one development. She was concerned with whether there was permitted operational development. The case before her, and the case presented by the claimants, was based on there being, on the face of it, a single development, and that, in her view, accorded with the realities and the facts as she saw them. Mr Strachan submits that that was a conclusion which she was clearly entitled to reach upon the material and upon what she saw when she visited the site.[42]The contrary approach is, as I have said, that it was never considered by the claimants in the light of the approach that had been adopted by the local planning authority that it was necessary for them to divide up the two. Their claim was based upon the reality, as they saw it, of the situation being that it was not appropriate for there to be cumulation. If they had realised, they say, that the Inspector was looking at cumulation on the basis of adding together on the understanding that it was only one development, then they would have taken a different approach. Of course, so far as they knew the position, it was that in each, as they regarded it, separate development, there was not an excess of 2.5 cubic metres. Therefore, they had, they thought, nothing to fear on that basis, even if it was appropriate to approach it in a cumulative fashion within each development.[43]Mr Strachan submits that they ought to have appreciated that, since they had approached the matter on the basis of it being a single development, if it was their case that it was not a single development, to have made that clear. He referred me in this context to a decision of the Court of Appeal in Taylor & Sons (Farms) v Secretary of State [2001] EWCA Civ 1254. That was a case which had concerned written representations. Incidentally, it is in written representation cases that in my experience the major difficulties arise which frequently lead to applications to this court. Be that as it may, the question there related to ground (f) and the question of the remedies which should be made in accordance with the terms of the enforcement notice. The case itself involved the unauthorised setting down of hard standing of a particular extent, and the question was how much of that was reasonably necessary for the purposes of agriculture. If that did not exceed 465 square metres, it was said the Inspector should have varied the notice to specify the relevant area and to require removal only of the excess. The submission to the contrary was that this imposed an impossible burden on the Inspector because the appellant in that case had not specified at any time which particular square metreage he would wish to retain if his appeal failed in substance, nor had he indicated that he would wish to make further submissions in such circumstances. The court said that the proper course was to specify the fallback position and to indicate what variation should be made. The court continued:
"41. In our judgment the broad approach of the Secretary of State is justified. Appellants should contemplate the possibility that their primary contentions may fail and that those of their opponents may succeed. The very reliance on ground (f) shows that this is the position. If there is a fallback position on which they wish to rely then they should make this clear to the Secretary of State in their submissions. It is not reasonable to come to court, as has happened here, and ask for the case to be remitted to the inspector so that she may ask for further submissions - which could and should have been made in the first place if the landowner wished to advance them. It might well be that the Inspector had the jurisdiction to explore the possibilities further with the parties. But the appellant was professionally advised. The advisers had chosen not to make any submissions in detail under ground (f). Certainly in those circumstances any failure by the Inspector to advert in her decision letter to the possibility of asking for further submissions does not amount to an error of law. 42. The judge's suggestion that the inspector should, presumably without warning and before perhaps coming to a final conclusion as to whether the appeals should be allowed on ground (c), have canvassed this matter at the site visit is in our judgment not appropriate; site visits are not there for the purpose of producing new submissions which might well be contentious. The person chosen to represent the other party would in all probability not be in a position to deal with such points. The weather is often foul, it can happen that the parties are out of earshot of one another and the conditions inappropriate for recording submissions. By and large conversation is rightly discouraged. The function of a site visit is to enable an inspector to make a judgment about submissions which have been made rather than to explore new possibilities. If the latter were to become commonplace it would be a fruitful breeding ground for further disputes."
[44]Submits Mr Strachan, in conformity with that, having chosen the speedier and cheaper option of written representations, the claimants ought to have realised that cumulative could be for both and could and should have made submissions accordingly. It was clear, in the circumstances of this case, that the Inspector's approach, as appeared for the first time in the course of the site visit, and contrary to any submission that had been made by the local planning authority, might well be to look at a cumulative approach -- indeed, was likely to -- and in those circumstances, there is, in my judgment, some force in Mr Strachan's submission that the claimants, particularly as they were professionally advised, ought to have been aware that this was a real possibility and ought to have raised the issues that they now seek to raise in relation to there being two, not one, developments.[45]I am bound to say I find this not an altogether easy decision to reach because there is what has been said by Mr Strachan on the one hand; on the other hand, there is the recognition that this was something which had never been put forward by the opposition, and there was no reason for the claimants to believe that they were going to be met with cumulative over both. The reality is that they had made two separate notifications. There were on one view two separate developments. Mr Boyle has pointed out that it is open, for example, taking a straightforward planning application, for an applicant to make an application for planning permission to do X, to obtain that permission, later to decide that he needs actually to do X plus Y, and to make a subsequent application for Y. He then has two separate planning permissions which enables him to carry out X plus Y. Now, X plus Y may well be dealt with at one and the same time. Indeed, it would no doubt be relatively common for that to occur, so that on one view one could look at it as a single development. But for the purposes of any subsequent enforcement, there are two separate permissions, and thus technically two separate developments. The same situation, in Mr Boyle's submission, by analogy can be said to apply here. He relies upon the evidence to which I have referred from Mr Early to the effect that these were regarded as two separate developments, and were properly regarded, and could not properly have been regarded if the matter had been considered on the basis of their evidence as being one comprehensive development, whatever it may have looked like. The point was made that it would have been possible to split it, and to make clear, for example by carrying out 2G first and 3G second (or the other way around, it matters not), and so making it plain without any possibility of argument that they were separate, whereas the cumulative effect would be the same.[46]The claimants found their arguments largely on the basis that it is said to have been a breach of fairness for the Inspector to have gone ahead without notifying them of the approach that she was going to adopt. I prefer to put it on the basis that the Inspector was wrong in law to have decided that this was a single development without enabling any submissions to be made, when it was clear, or ought to have been clear to her, that the Council had never raised this point, and that it may well be the case that the claimants had not themselves believed that it was a material consideration.[47]Accordingly, I am persuaded that the decision is one which, on that ground, cannot stand and must therefore be quashed. It means that the matter will be remitted to the Secretary of State to consider the matter afresh upon the evidence that the claimants seek to put forward to demonstrate that this is or should be regarded as two separate developments.[48]I should of course make it clear that that material having been taken into account, it does not automatically necessarily follow that the claimants will succeed, but that will be a matter for consideration in due course.[49]MR BOYLE: My Lord, I am obliged. My Lord, I think the correct order is that the matter be remitted to the Secretary of State formally, rather than be quashed.[50]MR JUSTICE COLLINS: Whatever is the correct order. I assume that the effect of this is that the Inspector's decision no longer has any effect.[51]MR BOYLE: That is right, my Lord, and the appeal is then to be re-determined by the Secretary of State.

MR JUSTICE COLLINS: Re-determined by the Secretary of State.

[53]MR BOYLE: My Lord, I have an application for the claimant's costs.[54]MR JUSTICE COLLINS: I do not think you can resist that in principle, can you, Mr Strachan? You may resist parts of it, I appreciate, but the general proposition?[55]MR STRACHAN: My Lord, what I was going to address you on was the question of what costs order should be made. I accept of course the claimant's won on one ground, but of course they have lost on the last ground.[56]MR JUSTICE COLLINS: What you are really submitting, I imagine, is that they should not have all their costs.[57]MR STRACHAN: They should not have all their costs. What I was trying to mentally calculate was what would be the fair proportion. I am inclined to say at this stage no order as to costs, because your Lordship will have seen, in terms of the amount of material prepared, and the large amount relating to the Nike decision -- the bundle was prepared on that basis -- ground 1 originally having been pursued on its own, I would suspect that the bulk of the costs, indeed certainly half the morning and half the argument in this case has been on the ground on which they have failed. I readily accept I failed on ground 2, but, my Lord, from an equitable basis, I would say in those circumstances the one cancels out the other, and the fair order in those circumstances would be each party walks away, we having won on one point and they having won on the other. My Lord, that would be my starting point. If your Lordship is against me on that, then I would of course seek to limit the amount of costs to --[58]MR JUSTICE COLLINS: That is really, I will not say palm tree, but it is certainly a broad-brush approach. It is a question of percentage, is it not?[59]MR STRACHAN: Your Lordship is in a good position to judge how the argument has progressed. There has been considerable debate about ground 1, and that has been a matter of some importance. Once that principle is established of whether it is no order or a percentage order, I do have submissions about the summary assessment.[60]MR JUSTICE COLLINS: That we will come to if necessary. Well, Mr Boyle, what do you have to say about that?[61]MR BOYLE: My Lord, I resist that totally. The general principle is that the successful litigant receives his costs.[62]MR JUSTICE COLLINS: Not now. It is 44.3. It makes clear that we have to consider issues which have been raised and make appropriate variations of costs orders to take that into account. I agree, in the old days if you won, you expected the other side to pay, even if you lost on most of your arguments and won on one only, but that is not the modern approach, is it?[63]MR BOYLE: Nonetheless, in my respectful submission, this is a case where it is appropriate for the whole of the costs to be paid by the defendant to the claimant. As my Lord has seen, the ground which came in successfully was added because it could have been pleaded at the beginning but in fact was not, for the reasons we have already explained. That itself was a costs saving exercise as we thought.

MR JUSTICE COLLINS: You thought it was.

[65]MR BOYLE: Yes, and for that reason, that process was undertaken.

MR JUSTICE COLLINS: Did Sullivan J make any order?

[67]MR STRACHAN: I was going to draw your Lordship's attention to that. The order is at the back of the bundle, and it is costs reserved, save that costs of and occasioned by -- any additional costs by reason of the amendments to be borne by the appellant, because it was asked, given that they were bringing a claim late, they should bear the costs of and occasioned by the amendment.[68]MR JUSTICE COLLINS: What is that meant to cover? Additional costs by reason of the amendment? I suppose that is to cover any extra evidence that has been put in as a result --[69]MR STRACHAN: My Lord, in my submission, the drafting of the additional claim, insofar as you will see in terms of detail, caused them additional time by having to come back and think about the case and putting it forward a second time around.[70]MR JUSTICE COLLINS: It is a reduction in their costs; it is not anything else other than that. It is not a question of their paying you anything?[71]MR STRACHAN: No, my Lord, it is just they have to bear the costs that they would otherwise have incurred.[72]MR BOYLE: Yes, but it is limited to what is attributable to the fact that it came in second, rather than having been --[73]MR JUSTICE COLLINS: Yes, but that is not a matter for me. Whatever order I make, that will be taken into account.[74]MR BOYLE: That is right, on that very limited basis. It is because of the timing stage as opposed to the fact. But, my Lord, if I may return to the substance of the point, the grounds would have originally been pleaded together. They would have come forward together.

MR JUSTICE COLLINS: Should have.

[76]MR BOYLE: And we would then have argued them through.[77]MR JUSTICE COLLINS: You see, looking at this perhaps with hindsight, what you should have done, of course, was to include both, but then said:
"Look, do not do anything in relation to 2 because we think 1 is a knock-out, and hope you will concede on 1"
. But then you would have had 2 there if they did not succeed.[78]MR BOYLE: My Lord, that of course does leave the claimant with the costs of having to put it all together in the first place, and if you see the way in which the bundle has been put together, a great deal was put in at that stage, which was sought to be avoided. That cost to the claimant, recalling that --[79]MR JUSTICE COLLINS: But you did not need to put in any evidence in relation to that; that could have followed.[80]MR BOYLE: Well, not if we were to put in the two grounds together from the beginning as was suggested. The purpose of dividing it up in this way is precisely to limit the costs of the claimant in putting it together -- limit, therefore, as we hoped, the successful claimant's costs receipt from the defendant and so limit the impact on the public purse that way. Plus we always have to remember, my Lord, that the costs, if they are going to taxation, one does not get everything that one has spent. Indeed, what is claimed is seldom what is spent, because the difference between that which the client pays to a solicitor and that which a solicitor then can put in as part of a cost claim exists.[81]So, my Lord, for all those reasons, we were very careful, we thought, to adopt a sensible approach and do it in this two-stage way. That having been shown ultimately to have been to no avail, which we have no complaint about at this stage, we should not then, I respectfully submit, be penalised in a dividing up costs claim so as to remove the first ground. We actually set out to achieve the overriding objective of limiting costs. Now, if there is to be a division, and I stress the word "if", if there is to be a division, it is going to be extremely difficult and unsatisfactory to attempt to do it now. The way in which the balance of argument is conducted in the court of course would be highly dependent on the way in which the judge presiding considers the strength of one --[82]MR JUSTICE COLLINS: That is an exercise one has to carry out; is it not? It may be to a degree unsatisfactory in the sense that it is not possible to be precise, but it surely is possible for the judge, and indeed it is essential and necessary I fear, for the judge to form a view, which will be a broad-brush view, as to what is the appropriate order having regard to what has been won and what has been lost.[83]MR BOYLE: My Lord, in those circumstances --[84]MR JUSTICE COLLINS: I do not think I can avoid that. I have the obligation to do it, and I cannot do it other than now and on the basis of what I have heard.[85]MR BOYLE: My Lord, we would suggest in terms of the amount it should go to taxation.[86]MR JUSTICE COLLINS: Amounts I am not concerned with. I am concerned with the question of proportion. I agree, if there is no question of agreement, of course it will have to be detailed assessment if not agreed.[87]MR BOYLE: To do a rough division now at this stage of one-third here; two-thirds there --[88]MR JUSTICE COLLINS: No, it is not a question of one-third here, two-thirds there, it is a question of, overall, what is the fair order to make in relation to costs having regard to what you have succeeded on and what you have lost on.[89]MR BOYLE: I revert then to my principal submission, that we should be entitled to the entirety of our costs notwithstanding the outcome. We have been successful. The matter will have to go back to the Secretary of State, and we will argue it through --[90]MR JUSTICE COLLINS: That is of course the starting point, that you have won, and I think that is recognised by the relevant rule to be the starting point. Let me just look at the book of words:
"44.3(2) If the court decides to make an order about costs – (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party ..."
[91]That is the general rule, and under 44.3(4):
"In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including – ... (b) whether a party has succeeded on part of his case, even if he has not been wholly successful ..."
[92]MR BOYLE: My Lord, with the greatest of respect to the authors of the rules, that has always been the case, that there is no strict rule as to costs. The only rule was there was not a rule as to costs, and the court has always been able to achieve an equitable position if they wish to. The position as I respectfully submit is as follows. The general rule is as still recorded there.

MR JUSTICE COLLINS: Yes, but if you look at the comment on the rule, it starts thus:

"Although this rule preserves the general rule that the unsuccessful party will be ordered to pay the costs of the successful party, Lord Woolf MR was anxious to move away from the position that any success is sufficient to obtain an order for costs. He therefore envisaged far more partial orders for costs which more accurately reflect the level of success achieved by the receiving party ..."
And there is a reference to a case called AEI v Phonographic Performance. That is the approach that we now have to adopt.[94]MR BOYLE: My Lord, taking that into account, if one casts one's mind back to the good old days, as it were, where one might have 11 grounds -- not a practice that I particularly favoured -- but nonetheless 11 grounds, only won on one out of eleven, one could fully understand Lord Woolf's approach. But here we have two. We won on one of those two. In fact, the way in which we approached ground 2 is influenced by the approach of the claimants in respect of ground 1 because, as it were, the claimants' approach in the case, and it is the case in front of the Inspector, was influenced by its position in respect of ground 1. My Lord has found, and again we make no complaint, against ground 1 as a matter of law. My Lord has also been fair to recognise that there is a profound ambiguity in the way in which the matter was set out --

MR JUSTICE COLLINS: I think it was ambiguous, yes.

[96]MR BOYLE: And a thoroughly unsatisfactory one in which the Secretary of State has either kept the ambiguity going or at least failed to recognise the way in which others have looked at it in the past, and indeed mention of that was made in the judgment. So it is not the case that --[97]MR JUSTICE COLLINS: So it is the Secretary of State's fault that you are here in the first place for not getting the order right.[98]MR BOYLE: It is not the case, my Lord, that this was only just crossing the threshold of arguability. There was a real point here.

MR JUSTICE COLLINS: Yes, it was clearly arguable.

[100]MR BOYLE: And also, if I may say so, of significance to the industry as a whole. My Lord has seen reference to the MOA and its general approach, not just O2, and certainly not just this case.

MR JUSTICE COLLINS: I understand that.

[102]MR BOYLE: So all these matters are very important to have litigated, and whether we were right or wrong to allude to the Nike case, my Lord can see the way in which the claimants certainly expected the matter to go as far as that construction is concerned.

MR JUSTICE COLLINS: I follow that.

[104]MR BOYLE: So for all those reasons, my Lord, in my submission, it would be exceptionally harsh in this case to take Lord Woolf's observations perhaps in the context of the good/bad old days, and deprive the successful litigant here, who has come properly to the court, of the entirety of their costs. If there is to be a reduction, it should be a very modest nod to Lord Woolf.[105]MR JUSTICE COLLINS: Yes. Anything you want to add, Mr Strachan?[106]MR STRACHAN: My Lord, I only just respond to the idea that the Secretary of State would be responsible for the order. Your Lordship made observations about ground 2 as to the closeness of that. So, my Lord, it is swings and roundabouts which is why I put forward a fair -- what I consider to be a fair proposal: both sides bear their own costs because we have been equally -- I would say ground 1 has taken some time, and ground 2 has taken some time. But, my Lord, you have my submissions.[107]MR JUSTICE COLLINS: Yes. The claimants have succeeded, and therefore the general approach to costs, as set out in rule 44.3(2), is that the unsuccessful party should pay the costs. But the court is enjoined to take into account the fact that they have not succeeded on the whole of their case in the sense that they have raised two grounds and have failed on one but succeeded on the other. The one upon which they have failed is the one which they regarded quite clearly as their primary ground. Indeed, it was the only one they relied on originally when they instituted the claim. That is a pure point of construction of the relevant provisions, and involved producing to the court all the material that, in any event, was material for their second ground. There was a certain amount of additional material that they produced in relation to the second ground, but the order of Sullivan J made it clear that they were not entitled to the extra costs incurred by them in producing that extra material. So to that extent, the Secretary of State has avoided the whole of the costs.[108]Mr Strachan has submitted that since ground 1 took up the substantial part of the judgment and that they only succeeded on ground 2, the fair order would be that there should be no order for costs. That I do not accept. The claimant has succeeded, and the prima facie approach to success must be honoured. The only question in my view is whether it is proper to deprive the claimants of the whole of their costs, having regard to the fact that they lost on ground 1, which is a pure point of construction of the relevant order.[109]It seems to me that it is appropriate for there to be some reduction, but I accept Mr Boyle's submissions that that reduction should not be one which is very great in the sense that it certainly should not amount to, say, 50 per cent, which is another possible approach. Doing the best I can, having regard to the issues which have been argued before me, it seems to me that the appropriate order is that the claimants have two-thirds of their costs payable by the Secretary of State.[110]Mr Strachan, in this sort of situation, not that I have seen any schedules, I am always reluctant to make summary assessments, and particularly as it is said that there are issues to be raised by you as to the amount they are claiming. I think it has to be, does it not, detailed assessment if not agreed?[111]MR STRACHAN: My Lord, there are schedules, and we do have some issues on the schedules because we consider them to be excessive.[112]MR JUSTICE COLLINS: You can try, but I am very reluctant indeed as a matter of general approach to make summary orders. What I can do sometimes, and if I am asked to do it I will, is to make an order for an immediate payment of a proportion, and there can be argument about the balance.[113]MR STRACHAN: Can I just take instructions. (pause)

MR JUSTICE COLLINS: Mr Boyle, do you have any instructions on that?

[115]MR BOYLE: The solicitors behind me favour detailed assessment hereafter.

MR JUSTICE COLLINS: The whole lot?

[117]MR BOYLE: Yes.

MR JUSTICE COLLINS: That falls not on stony ground, but let us see.

[119]MR STRACHAN: My Lord, I did not hear that; I was taking instructions. My learned friend was proposing?

MR JUSTICE COLLINS: He wants a detailed assessment.

[121]MR STRACHAN: My Lord, we would invite you to carry out a summary assessment.[122]MR JUSTICE COLLINS: Perhaps I had better see the schedule in order to have some idea of what is being asked for. I have no doubt that your schedule is considerably lower than theirs, but that is always the way.[123]MR STRACHAN: My Lord, the amount claimed is £40,650, which we say, just from an automatic response, is an excessive amount for the claimant. Our claim was for £13,593. But, my Lord, the particular matters of complaint are, and if I take your Lordship through it, the amount spent by way of attendance on client of the partner, 43 hours, we cannot see the basis for that in a claim of this type.[124]MR JUSTICE COLLINS: But how can I decide that sort of matter without going into representations and counter-representations? It is just the sort of thing that a costs judge deals with.[125]MR STRACHAN: That is true, it is a matter for a costs judge to deal with, although a summary assessment procedure for one-day cases does envisage the court --[126]MR JUSTICE COLLINS: I could, but when there is a challenge to the propriety of things such as that, I cannot decide it without hearing representations as to what was involved, why it was involved. It may be too much, I know not, but how can I reach any conclusion?[127]MR STRACHAN: My Lord, just on the basis of instinct. The 43 hours --

MR JUSTICE COLLINS: I agree, on the face of it, it does seem rather high.

[129]MR STRACHAN: And then over the page there are no less than four conferences, plus a site view, and given the nature of these jurisdictions, my Lord, the question of site view --[130]MR JUSTICE COLLINS: Mr Boyle, does this leave out the costs that you are going to have to bear anyway as a result of Sullivan J's order?[131]MR BOYLE: No, it does not.

MR JUSTICE COLLINS: So they would have to be taken out?

[133]MR BOYLE: They would be taken out.[134]MR JUSTICE COLLINS: Well, it looks as if you are going to get some out anyway, but how can I decide what goes out? This apparently includes all the costs which Sullivan J's order said that you were not going have to pay.[135]MR STRACHAN: My Lord, those should not be in there, in any event.

MR JUSTICE COLLINS: I know that they should not, but how can I decide that?

[137]MR STRACHAN: In my submission, I would invite your Lordship to take a view as to attendance on clients -- 43 and a half hours is manifestly excessive.

MR JUSTICE COLLINS: I agree, it looks rather a lot.

[139]MR STRACHAN: My Lord, in my submission, just working out what is reasonable for a claim of this type, at most 23 hours, and I could give your Lordship figures as to what we consider reasonable.

MR JUSTICE COLLINS: So you would say about half there?

[141]MR BOYLE: Forgive me, my Lord. My Lord does not have the schedule from the Secretary of State. It is a little rich for the Secretary of State to suggest that we should spend 23 hours, my solicitors attending on my clients, when the Secretary of State's solicitors spent in excess of 26 hours just as respondent.[142]MR STRACHAN: My Lord, you can have the schedule. There is 1.8 hours spent in attendances --[143]MR JUSTICE COLLINS: Mr Strachan, I am not going to go along this route, I am sorry. It is not appropriate. I do not have the necessary information. I do not, I am afraid, propose to -- what do you suggest would be the appropriate grand total? Give me a figure.[144]MR STRACHAN: £25,000, my Lord.

MR JUSTICE COLLINS: That is the total?

[146]MR STRACHAN: That is the total from this schedule, and then one applies the two thirds principle that your Lordship has ordered. Can I just correct something my learned friend just said, the point about the comparison, this is 43 hours spent by a partner. Our schedule is 1.8 hours spent by (inaudible) at the higher rate, and 25 hours spent by a legal trainee at a rate of £90. Your Lordship can readily see the way in which the two schedules are very different and how they come to different amounts.[147]MR JUSTICE COLLINS: No, Mr Strachan, I am sorry, I am not going to go into this exercise. I do not think it would do justice if I tried to do so, particularly as there are relatively substantial sums in issue. Of course, agreement can possibly be reached, and I imagine that the claimants will be advised and will appreciate that going to a costs judge costs money, and therefore it may be more sensible to agree, even if it is a slightly lower sum than they might otherwise expect. If you put forward a reasonable offer -- at the moment I do not think 25 is a reasonable offer. Certainly I would not have gone down that far.[148]MR STRACHAN: My Lord, it is a question, as your Lordship says, of looking at is it reasonable for a partner in a London firm to spend 43 hours on a case.[149]MR JUSTICE COLLINS: I do not know about 43 hours, but when you have a client such as this, who is no doubt a client which the firm of solicitors wants to cultivate, or rather to maintain and give a proper service to, that is a matter that has to be taken into account.[150]MR STRACHAN: We should not be paying the costs of that.

MR JUSTICE COLLINS: They would hardly give them the services of a trainee, would they?

[152]MR STRACHAN: There are checks and balances and supervision --

MR JUSTICE COLLINS: Well, I know.

[154]MR STRACHAN: But anyway, your Lordship is not going to --

MR JUSTICE COLLINS: No, I am sorry.

[156]MR STRACHAN: I am just conscious your Lordship said you think £25,000 is too low. My Lord, it is very quickly one gets down to that amount if you apply principles --[157]MR JUSTICE COLLINS: You may be able to persuade a costs judge. Good luck to you. But I do not think I can do justice by making a summary assessment. I am either going to do an injustice to the claimants or to you, and I do not want to do either. Any other applications.[158]MR BOYLE: No, my Lord.[159]MR STRACHAN: No, my Lord.

MR JUSTICE COLLINS: Thank you both.