Bristol City Council, R (on the application of) v Secretary of State for Communities and Local Government [2011] EWHC 4014 (Admin)

Case No CO/4575/2011

[2011] EWHC 4014 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 29th November 2011

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE COLLINS

Between

THE QUEEN ON THE APPLICATION OF BRISTOL CITY COUNCILClaimant

Between

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2AG

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

(Official Shorthand Writers to the Court)

Miss C Colquoun (instructed by Bristol CC) appeared for Claimant

Mr J Maurici (instructed by Treasury Solicitor) appeared for Defendant

Mr David Elvin QC & Mr T Fisher appeared for Interested Party

J U D G M E N T

[1]MR JUSTICE COLLINS: There is before me an application under section 288 of the Town and Country Planning Act 1990 and a claim for judicial review of a costs decision arising out of the same appeal. The judicial review is before me as a rolled up hearing. There is no need for permission in the section 288 appeal.

[2]The applicant and the claimant for judicial review are the Bristol City Council. They refused planning permission for the development in question and the applicants, who are Viridor Waste Management Ltd, appear before me as an interested party in the claim and as a respondent to the application. The precise basis upon which they appear is perhaps immaterial. They obviously have a very considerable interest in the outcome of these cases.

[3]The permission sought and granted was for what is described as a resource recovery centre, including a materials recycling facility, an energy from waste facility - I think perhaps more commonly known as an incinerator - an incinerator bottom ash recycling facility, and there was also ancillary development including access roads, parking, weigh bridges, landscaping and offices and a visitor cum education centre. The area of the development is some 8.3 hectares. It is not necessary to go into any detail. It was an industrial area, no longer used as such but there are close by a number of sensitive areas in respect of wildlife of one sort or another. This being development which falls within the relevant Directive, it required an Environmental Impact Assessment.

[4]That I will come to in due course, because that did not found any ground for the application under section 288, when the application was lodged. But, subsequently, the claimants have sought to raise an issue under the Directive, stating essentially that the EIA which was provided was insufficient because it did not cover everything that it ought to have covered and they have sought leave to amend to add that ground to their application. They say that they did not appreciate that that was a ground upon which they could rely until a decision in another case, relating to a waste disposal development, came to their attention. That did not happen until after the 6 weeks within which a section 288 application has to be brought had expired. As I say, I will come to that in due course.

[5]Again, I am not going to go into the full details. Suffice it to say, that the total throughput of metric tons per annum of what was proposed was 680,000. It would also have the possibility of providing a link to the National Grid, as a result of the processes that went on, because electricity could be generated. In addition, it was possible that there might be generation of heat, which could be provided to businesses, or other facilities within a reasonable area - I think the area in question was up to 5 kilometres, certainly that was the possible area within which the facility could apply. This is known as a combined heat and power facility (or CHP for short). The details of that I will come to again in due course but, at the stage when the appeal was heard, as will become apparent, the issue of heat, although it was there, had not got beyond a possibility, that is to say, nothing concrete was decided in relation to whom and how such heat could be provided.

[6]The reasons for refusal given by the Council were two essentially: first, that there would be over concentration of waste recovery in a single zone, and secondly, that the undermining of the benefits of a wide distribution of waste recovery facilities would result in excessive traffic movements. This decision to refuse was contrary to the recommendation advice given by the officers and it is that aspect that led to the adverse decision on costs and, again, that I will come to in due course.

[7]It was common ground that the most material plan for the purposes of section 38(6) was what was described as the West of England Joint Waste Core Strategy. That was not formally in existence at the time that the appeal was heard by the Inspector: in fact it was not adopted until March 2011. The hearing before the Inspector was in November/December 2010 and he reported on 3rd February 2011. It was however in existence by the time the Secretary of State made his decision on 6th April 2011. But that is not material because it was common ground that it had passed through all the relevant processes, to consider whether it would come into effect and was at a stage when it was anticipated that it would be adopted in the form that was before the Inspector.

[8]It is of vital importance to bear in mind that what drives the strategy in relation to waste now is the view held by European and by national policy that landfill should be phased out. Apart from anything else, the availability of landfill sites is now most problematical. It is difficult to obtain sufficient sites to cater for the need to dispose of the waste that is generated and the future prospect, if alternative means are not put into effect, is that green field sites will have to be used in order to supply the possibility of further landfill.

[9]This is, as I say, of vital importance and one sees this reflected in the language of the JWCS. Paragraph 3, under the heading "Key Issues" says this (3.2.1):

"The aim of European National and Regional Policy is to move waste management practices away from landfill, reduce waste production, encourage recycling and composting and focus on recovering value from any residual waste remaining. A network of facilities is sought operating without endangering human health or the environment, and without adversely affecting the countryside or places of special interest. A key role from the JWCS is to deliver these objectives at the local level."

Then under the heading "Vision and Strategic Objectives of the JWCS" we find this (4.3.1):

"The planning system has an important role to play in achieving sustainable waste management. The strategic objectives of the JWCS have been shaped by understanding what is desired and achievable through both the iterative process of the sustainability appraisal and preparation of the evidence base."

Then the strategic objectives, under a number of bullet points follow, the first of which is:

"To move the management of waste up the waste hierarchy by increasing waste minimisation, recycling and composting and then recovering further value from any remaining waste and only looking to landfill for the disposal of pretreated waste."

The waste hierarchy puts landfill at the bottom and other alternative means in an ascending scale of desirability. At 4.4.1, one sees this:

"The joint waste core strategy should be read as a whole and along side other relevant European National regional and local policy. The structure of the document has been prepared to reflect the waste hierarchy and is ordered as outlined below."

Then we go to Part 6, which contains the relevant policy which is at the centre of this application. At 6.1.1, one sees this:

"The promotion of the waste hierarchy is central to European national and regional policy. The policy framework for this JWCS is set out in accordance with the waste hierarchy. Acknowledging the importance of waste prevention, reuse and recycling and composting prior to recovery and finally disposal."

Incidentally, I think anyone now appreciates the issue of waste prevention because we are all required, or most of us are required now, when disposing of our household waste, to ensure that it is divided amongst waste that can be recycled, waste that is food waste and other waste. There are dire penalties that are suggested if we fail to carry that out. This is all to minimise the amount of waste and as part of ensuring, so far as possible, that such waste as there is capable of being recycled one way or another and thus landfill is so far as possible avoided.

[10]Part 6 included a plan or a diagram which was said to be indicative of capacities within the west of England sub regional spacial strategy. There were five zones around Bristol. The relevant zone for our purposes is zone A, which is Avonmouth and which is aimed to have a capacity of 390,000 tons per annum. The other five zones have varying capacities arranging from zone C at 150,000 and zones Z and B at 100,000 and zone D at 60,000, the total therefore being 800,000.

[11]Policy 5, which is, a material policy at the centre of this application, provides as follows, so far as material:

"Planning permissions for development involving the treatment of residual waste, where it supports the delivery of the spacial strategy will be granted at the following locations subject to development management policies."

There are then set out eleven discrete sites, one of which, under letter F, is the site with which this application is concerned. Then this is said:

"The facilities proposed will be required to contribute to a delivery of the spacial strategy illustrated in figure 6.1. Indicative requirements for residual waste treatment are [the tonnage per annum which I have already indicated.] monitoring will be undertaken to ensure the spacial strategy is delivered."

[12]It is, as I say, that policy, and particularly the word "ensure" which is relied upon and said to have been misinterpreted both by the Inspector and by the Secretary of State. Accordingly, I should look at the Inspector's reasons, which are contained in his detailed and lengthy report. I do not intend to read all but it is necessary I think to read the salient paragraphs. I start at paragraph 217. He says this:

"The future strategy for the management of waste in the west of England sub region is set out in section 6.8 of the JWCS. The JWCS seeks to deliver by 2020 diversion from landfill of at least 85% of waste. Of these 50% is intended to be achieved through recycling and composting, the remaining 35% is to be achieved by recovery through the provision of residual treatment capacity, in the form of mechanical, biological or thermal treatment."

It goes on to state:

"The delivery of residual waste treatment infrastructure is central to the achievement of the JWCS policy and objectives. Because of this and in line with PPS 12, sites suitable for the delivery of residual waste treatment capacity in their spacial shall distribution are of strategic importance to the west of England sub region."

Then in 219 he says:

"The indicative recovery capacity for the west of England sub region is set at some 800 kilotons per annum. It is neither a minimum nor maximum figure, but rather the capacity that would need to be provided if at least 85% waste is to be diverted from landfill and assuming 50% diversion has been achieved through recycling and composting. The possibility of greater recovery capacity being provided is acknowledged."

He then quotes again from the JWCS and states:

"Where there is market potential for more capacity than indicated in figure 6.1, a judgment will need to be made in particular considering the benefits of the spacial strategy as identified in the sustainability appraisal and the potential for in combination effects of adversely affect sites of European nature conservation. Authorities are committed to a plan, monitor and managed approach and will review both planned and operational capacity when considering applications."

It is clear that the capacities stated are not to be considered as prescriptive. Then in 221, this is said:

"The JWCS notes that not all residual treatment capacity will be delivered at the same time but assumes it will be delivered throughout the planned period in line with draft RSS capacity apportionments and market demand. To this end the JWCS sets out three 5-year phases to 2026, referred to a short, medium and long-term. It emphasises that it is intended to be illustrative rather than prescription but all capacity in zone A (Avonmouth) is anticipated to be provided in the first phase ie by 2016. This will be followed in the medium term by capacity for some 150 kilotons per annum in zone C [the major part of particular prescriptive area] and 60 in zone D. The capacities for zones B and E, each of 100 would be provided in the longer term, ie 2021 to 2026. JWCS gives no reason as to why these two localities should be left until later although this timing may have been influenced by those preparing JWCS being unable to identify any strategic sites within zone B but referring the said to indicate a general strategic area A while the choice of a specific site in Weston-Super-Mare with 100 capacity zone E, would need to await future decisions on planned urban extensions."

This reflects the fact that there might be difficulties in finding appropriate sites within those subsequent zones. Then at 225 he says:

"I conclude on the basis of both the terms of JWCS and the actions of the WEP authorities while a wider spacial distribution of facilities is desirable, that is something that would only be achieved in the longer term and then only if the market chooses to provide those facilities. That is by no means certain. The difficulties are to some extent highlighted by the JWCS key diagram, which shows the location of allocated waste recovery sites. Of the 11 sites allocated under policy 5 as potential locations 8 are within zone A (Avonmouth)."

Then 228, the appeal site comprises the major part of Policy 5 site 1F:

"The principal of its use for waste management purposes is not there for an issue. Allowing the appeal proposal would increase the permitted recovery capacity within JWCS zone A to 680 tons per annum compared with emerging planned indicative capacity of 390. This would not conflict with the JWCS in terms of overall recovery capacity although it would amount to 85% of the 800 figure. Moreover that overall figure only provides for diversion of 85% of waste from landfill. In circumstances where government policy is aiming to achieve zero waste and landfill in the longer term further diversion from landfill can be anticipated and experience elsewhere suggests that up to 95% of residual relevant waste is suitable for EFW. Although it cannot be assumed that a further reduction in landfill will only be by way of recovery. Both national and local guidance encourage further increases in recycling and/or composting in accordance with moving waste up the waste hierarchy."

Then at 230:

"Increase in the recovery capacity at Avonmouth would not initially appear to accord with the spacial strategy. However, that spacial strategy assumes a continued demand for landfill capacity, capable of accommodating an average of some 350 tons per annum of residual waste over the period to 2026. Setting aside the acknowledged difficulty in finding new landfill capacity noted above, providing additional recovery capacity, in addition to reducing that demand for landfill would greatly reduce GHG [greenhouse gas] emissions associated with landfill irrespective of where that capacity was provided within the west of England sub region. In the wider context reducing GHG by diversion of waste from landfill is a major element in the reasoning underlying the raising of landfill tax, to a deterrent level of £80 per ton by 2014."

Then in 232:

"Granting planning permission for the appeal proposal and providing both the permitted schemes in Avonmouth and the capacity anticipated in the JWCS in zones B to E would still leave some residual waste to be disposed of by landfill. On this basis it cannot reasonably be argued that the appeal proposal would (a) represent an over provision or over concentration of waste recovery facilities in zone A the west of England sub region or (b) be in conflict with the policies and strategy of the emerging JWCS."

[13]His reference to the possibility of the other zones being able to take their allocation, as it were, even though zone A was increased to 680,000 was based on evidence before him which showed that the total, assuming 680 plus the others of 1,082,000 tons per annum would still be less than, and he puts it to 95% of the relevant waste that would have to be dealt with.

[14]It is clear from the JWCS and indeed, that only reflects national and European Convention policy that the avoidance of landfill is to be the guiding principle of waste disposal. Indeed, the evidence was that in the west of England area, existing landfill will be full to capacity by 2013/2014, and alternative sites would almost and certainly involve Greenfield encroachment.

[15]Accordingly, it was important to avoid, so far as possible, the need for extra landfill. In my view it was entirely correct to construe Policy 5, so far as possible, to meet this fundamental requirement. That is what the Inspector did, the Secretary of State approved and it is only if that was a construction of Policy 5 which as a matter of law could not stand, that this application, on this ground, has any chance of succeeding. In fact Miss Colquoun submits that if one looks at the policy it is necessary that it accords with the spacial strategy illustrated in figure 6.1, ie that the capacities there set out should be met. She draws attention, as I have said, to the wording stating that monitoring would be undertaken to ensure the spacial strategy was delivered.

[16]Certainly the spacial strategy indicates that it is important that there should be a diversification of sites within the various zones. But, as the Inspector pointed out, to increase in zone A to 680,000 would not prevent the amounts that were earmarked for the other zones being met. Thus, within the context of the approach which is fundamental, as I have said, to the JWCS, the spacial strategy can be delivered and nothing in this approval will prevent that happening. That, as it seems to me, is not only a possible construction of this policy but it is in context the only sensible construction, having regard, as I have said, to the fundamental importance of the avoidance of landfill.

[17]In those circumstances, the suggestion that the Inspector and the Secretary of State approving the Inspector's approach got it wrong is not made out. Thus, that ground which was, as I say, the only ground upon which the application under section 288 was made is not substantiated.

[18]Let me turn to the question of the application for leave to amend to deal with the EIA point. In June 2009 the interested party submitted to the Council a request for a scoping opinion, setting out the intended scope of the EIA and seeking the Council's opinion on whether that was appropriate. The material part of the request for our purposes was 6.20, under the heading "Heat Plan" and this is said:

"West of England Partnership undertook a heat demand survey to assess whether there is sufficient potential heat demand in proximity to an identified site to justify CHP in addition to an EFW facility. It is considered that the application site and location offers excellent potential for the utilisation of the heat for the process, it is veiled to carry out a comprehensive assessment to establish whether the carbon footprint of the EFW can be further reduced by the utilisation of waste heat and quantify the addition carbon savings that may be achieved. The feasibility of a combined heat and power scheme relies on consistent market on the heat supplied by the plant. In order to determine the existing potential market for heat in the Avonmouth area a base line assessment will be carried out which will involve looking at facilities in the local area, such as industry, hospital, schools, local authority housing, large commercial premises, all of which could provide an essential base load for the proposed CHB scheme."

[19]Accordingly, as it is said in the written submissions from the interested party, that no likely end user had at that stage been identified for heat from the scheme. Nor had any likely or possible route from the pipework been identified.

[20]It was not suggested by the Council, nor was it part of the EIA that impacts of possible future CHB pipework should, at that stage, be assessed. What in fact the Council stated in the scoping opinion was this:

"The Environment Agency is encouraged to see that the scoping report identifies that the proposed facility could provide heat and power to local community and National Grid. This aspect should be explored further in future documentation. Local companies and facilities could be identified that could use the heat produced from the process."

[21]Now the point is made by Miss Colquoun that at that stage that was considered to be the correct approach to be adopted. It was an approach that had been adopted in another application. But the situation was, it is suggested, changed as a result of a decision of the Secretary of State, in another case, in Cheshire, concerning an application for a waste disposal facility by a body called Covanta.

[22]That was a decision which was made on 8th April 2011 but which the claimant said was not drawn to its attention until I think 17th May 2011, which was after the 6 weeks had expired. What that stated, we see from the relevant decision of the Secretary of State on that day, 8th April, the relevant part of which is as follows:

"The Inspector's ruling which is attached as an annex to this letter has taken account both of the Council's submissions and those made on behalf of the appellants. He considers that because the fundamental purpose of the EFW facility is to recover energy from waste in accordance with aims of the Revised Waste Framework Directive 2008, and the Waste England Wales Regulations 2011, this purpose can only be fulfilled if the energy generated by the facility is exported. Whether there is electricity or a CHP or some combination of the two. Accordingly he concludes that the export of energy is an intrinsic and necessary part of the development, so that the effects of that exported energy fall to be assessed under the EIA Regulations as part of the development. The Inspector concludes further that CHB connections to all parts of the mid point A Team business park are probable and that on the information before him the effect of those connections on protected species including European protected species is a likely significant effect of the proposed development. He also considers that an assessment of those effects is reasonably required to assess the environmental effects of the development which the appellants can, having regard in particular to current knowledge and methods of assessment reasonably be required to compile. The Secretary of State notes that although the appellants do not know the precise location and identity of occupiers of the whole of the mid point 18 business park, they have voluntarily undertaken assessments of indicative corridors for the electricity connection to the grid and of a CHP connection to the nearby premises of British Salt. Either forms part of the development subject to appeal A and no conclusive agreement has been made in the latter case. On that basis and bearing in mind the parameters and considerations identified by the Inspector in this ruling, the Secretary of State agrees that it would not be unreasonable to expect the appellants to carry out an assessment of the likely significant effects of the proposed CHB connections on the basis suggested by the Inspector."

[23]It is I think common ground that CHB connections are matters that will require a proper environmental consideration and an impact assessment in all probability. That will be part of the environmental effects of the development. But that does not mean that it is always necessary that is decided at the time of the application for planning permission.

[24]If of course, as was the case in the Covanta situation, CHP was probable and work had already been done in identifying the routes of any proposed piping, it was not unreasonable, as is said, to require the EIA to cover that at the stage before the Inspector. If, on the other hand, as was the position here, there was but a possibility of CHP and certainly no decision on possible routes of piping or where within the possible 5 kilometre area in question those connections could be made, it would not be reasonable to expect, at the stage of the application for planning permission for the development in question, for an EIA to be required to cover those aspects. There is no reason why, in those circumstances, the matter should not, in accordance with the requirements of the European Law be dealt with as and when it is known what is probably going to be the position. That, in my view, is not contrary in any way to the approach of the European Court in a case involving the Dutch Dykes, Kraajeveld ECR 1-5403. That decided that the Directive had a wide and broad purpose.

[25]It is also worth noting what the Inspector had to say in relation to the heat in his report and we find it at paragraphs 242 to 244. He says this:

"A number of interested persons objected to the proposal because it made no provision for the distribution and use by others of heat from the EFW. It is also the Council's position that little weight should be placed on the offer by the appellant to make the plant capable of exporting heat to surrounding users because there was no heat grid in place locally and there was no certainty that one would be provided in the near feature. In addition there was no certainty that the operator of the EFW plant would wish to make that heat available at some time in the future. The proposal could not therefore be considered to be CHP [that hardly chimes with the application that is now made, so that a EIA was needed to cover that.] 243. Whilst it is true that the EFW plant as described in the planning application only makes provision for electricity generation, the appellant is willing to construct the plant in such a way as to enable appropriate additional plant to be installed at a later date, for the export of heat to local users in Avonmouth in the event of viable opportunities for the use of such heat through a good quality CHP scheme coming forward. Conditions to that effect are agreed. Avonmouth is identified in the emerging Bristol CS as a priority area for industrial and warehouse development. As such it would appear to be a suitable area for the insulation of a heat grid and to this end low carbon southwest and Environmental Business Trade Association has been investigating a development of an industry to industry heat grid in Avonmouth in conjunction with the Council SJGC and local heat providers and users including the appellant. There are no technical reasons to prevent the insulation of equipment that would allow the connection and export of heat to a local heat grid at a later date. The fact that such equipment did not form proposal submitted is unsurprising. In the realms of energy creation and transmission nothing is free."

But in fact the interested party has agreed, as I understand it, to install the equipment which could be used in order to establish if that is decided to be something which should happen the necessary heat or necessary CHP.

[26]The Covanta decision, in my view, quite clearly does not indicate that in all the circumstances, where CHP is a possibility there must be an environmental impact assessment which covers that possibility. That would be absurd because unless and until it is at least known on the basis of probability, putting it no higher, that a particular route for that process to be carried out is at least considered, then it would be quite impossible to make a sensible assessment because one would simply not know what areas were likely to be affected and what would be the nature of any such effects.

[27]It was only because on its facts, as is clear, that there was known to be a probability of CHP and the routes were again known, in the sense that there had been a degree of research into what would be appropriate, that it was considered, on the facts of that case to be a reasonable requirement (and note a reasonable requirement). There is an element of judgment involved in whether that situation can properly be said to have arisen.

[28]In those circumstances, in my view, this other ground would have no prospect of success. Accordingly, whether or not I granted leave to amend would make no difference. So I simply dispose of it in that way.

[29]That leads me on to the question of costs. The Inspector dealt with his recommendation on costs in a separate report and it is necessary only to refer to some four paragraphs in that (paragraphs 25 to 28). The Inspector says this:

"As was clear from the evidence of the Inquiry, the level of arisings in the west of England is such that granting permission for the appeal proposal, together with extant permission for resource recovery facilities in Avonmouth granted by the Council would not preclude in capacity terms the provision of facilities in zones B to E at the rates suggested in the JWCS. The Committee were also reminded that the tonnage figures contained in the various JWCS zones were indicative, they were not prescribed the amount of residual waste capacity. 26. Paragraph B20 of Circular 309 indicates that while planning authorities are not bound to accept the recommendations of their officers, if officers' professional advice is not followed or authorities will need to show reasonable planning grounds for taking a contrary decision and produce relevant evidence on appeal to support the decision in all respects. 27. The Inquiry did not raise any new evidence which was not already before the Committee when it made its decision. Indeed the evidence tended to reinforce the correctness of the officer's recommendation as a means of driving waste recovery away from landfill, higher the waste hierarchy and with more sustainable outcomes which both accord with national policy, while at the same time continuing to allow for a spacial distribution of resource recovery facilities in other zones within the west of England in accordance with the emerging JWCS. 28. I conclude that the Committee members' decision not to accept their officer's recommendation amounted to unreasonable behaviour."

Unreasonable behaviour is the test which determines whether costs should be awarded against a party to a planning appeal, because the normal result is that each party bears his or her own costs.

[30]Miss Colquoun accepts that what the Inspector set out in paragraph 26 was a correct interpretation of the Circular and an indication of the approach that should be adopted to the question of costs.

[31]In his decision the Secretary of State said this:

"3.The Inspector's conclusions as stated at paragraphs 21 to 35 of his costs report, he recommended that your client's application for a full award of costs be granted. Having considered all the available evidence and having particular regard to Circular 309 the Secretary of State agrees with the Inspector's conclusions in his report and accepts his recommendations. However, with regard to the Inspector's reasoning in paragraph 28, where he considers the Committee Members' decision not to accept their officer's recommendation meant that the Council's decision to go against its own planning policies amounted to unreasonable behaviour, the Secretary of State wishes to clarify that it does not consider that it was the members' decision to go against their officer's recommendation per se that amounted to unreasonable behaviour but the fact that this also meant going against their own planning policy, without reasonable planning grounds resulting in the need for a planning inquiry and the costs incurred as a result. Accordingly he has decided a full award of costs is warranted on grounds of unreasonable behaviour on the part of Bristol City Council."

[32]As I have read the Inspector's conclusion, it is clear that his paragraph 28 in context did not say and was not intended to say that the Committee members' decision not to accept the officer's recommendation was in itself a reason to award costs. It was the conclusion that he reached as a result of his view that the Council on the appeal had not justified in any way the decision that it reached on planning grounds. Miss Colquoun submits that the Secretary of State went wrong in asserting that this decision was against its own planning policy. Rather, she submits, it may be that it was a mistaken construction of the policy but it was not going against it. There is a degree of artificiality here because, on the true construction of the policy, what the Council did was clearly contrary to it. Of course, that was because, or may have been because it misconstrued the policy. But that does not seem to me that in context again the Secretary of State can be said to have been going beyond what the Inspector decided. But even if he was, he clearly accepted the Inspector's recommendations and, as Miss Colquoun has to accept, she cannot argue that the Inspector's approach was one which would not justify an award of costs in all the circumstances.

[33]It seems to me, accordingly, that even if there is any substance in the complaint of the way the Secretary of State put it in his Decision Letter, that could have made no difference. Thus, the decision would inevitably have been the same even if he had omitted that reference, which he could well have omitted, to the construction, as it were, of the Inspector's paragraph 28. Thus no purpose would be achieved in granting any relief even assuming I was persuaded, and I am not, that there was any error in the way that the Secretary of State expressed himself in all the circumstances.

[34]The only final question that I have to determine is whether I regard the point raised by Miss Colquoun as arguable. That it will not succeed, I have made clear. But if it was arguable then I ought to grant permission and dismiss the claim, rather than simply refusing permission on the basis that that claim was unarguable.

[35]Arguability is a low threshold and I am just persuaded that the point was arguable. In those circumstances, subject to an undertaking to pay the necessary fee, I will grant permission but dismiss the application having dispensed with all further procedural steps that otherwise would need to be gone through.

[36]It follows that both the application and the claim are dismissed.

[37]MR MAURICI: In addition to the order as your Lordship has indicated in dismissing the claims, I seek, it is a matter of agreement of costs.

[38]MR JUSTICE COLLINS: Well, you are clearly entitled to your costs. I do not think Miss Colquoun could argue the contrary.

[39]MR MAURICI: My Lord if I give you the figure, the total figure is £13,612; my Lord that is agreed.

[40]MR JUSTICE COLLINS: Fine. In that case that saves any further argument. You can have an order for costs in the sum of £13,600. Mr Elvin?

[41]MR ELVIN: I am not asking for a full set of costs, I am asking for a partial award of costs in favour of the claimant in relation to the amendment. That was a matter on which we could and did lend judicial assistance: we had to file evidence because we are not the Secretary of State had the information relating to what had gone on before, on which your Lordship has relied. My Lord, we have served a statement of costs.

MR JUSTICE COLLINS: Let us see whether in principle Miss Colquoun seeks to argue against that?

[43]MISS COLQUOUN: My Lord, as I understand it, my learned friend Mr Elvin is proposing this on two bases: firstly, it could be limited to the simple submission of the additional evidence, which I accept we struggled with in terms of that as a matter of principle. However, there is also a wider suggestion that costs in relation to responding to the whole application to amend are also (inaudible) costs.

[44]MR JUSTICE COLLINS: I think he is entitled to be here to respond to the application to amend but whether one can limit his fees to that I am not sure.

[45]MR ELVIN: My Lord, what we have done is we have done a broad assessment of the proportion of the fees of 25%, which given that (inaudible) required a substantial -- your Lordship has seen reappear in our skeleton, indeed my Lord has read from it, we put in one basic statement, just relating to the evidence but the one I seek from your Lordship is an award of the costs proportionate to the dealing with the issue as a whole.

MR JUSTICE COLLINS: What does that come to?

[47]MR ELVIN: Very similar to my learned friend's, it is £13,543.

[48]MR JUSTICE COLLINS: Well, I know the difficulties and the Secretary of State is always cheaper than others but I think that is probably too much.

[49]MR ELVIN: If, my Lord, I would ask your Lordship to assess it at such. There is little point in going--

MR JUSTICE COLLINS: What is the amount, if you had limited it to the basis of--

[51]MR ELVIN: On the evidence it was 1491, perhaps your Lordship would fix it somewhere between the two.

[52]MR JUSTICE COLLINS: Yes. So £1500 you will not quarrel with or £1491?

[53]MISS COLQUOUN: My Lord only to say it is only the single document and one page.

MR JUSTICE COLLINS: It is the research that goes into it.

[55]MISS COLQUOUN: --£300 to produce a single page document does sound to be a little extreme my Lord. But I accept that as a matter of principle in the production of that additional evidence.

[56]MR JUSTICE COLLINS: I think he is also frankly entitled to, because they might have had to argue the amended point and they would have an input into that, quite clearly.

[57]MISS COLQUOUN: If we argue -- I am not going to drag it out.

[58]MR ELVIN: I acknowledge Bolton which is why I am making an application in relation to this one bit.

[59]MR JUSTICE COLLINS: I am inclined - and I know it is not generous to you but equally I am afraid I am not going to be entirely generous, I am thinking in terms of £5,000 overall?

[60]MISS COLQUOUN: So I can be clear, that is based upon accepting that the--

MR JUSTICE COLLINS: I accept he is entitled--

[62]MISS COLQUOUN: Would have to be here in order to...

[63]MR JUSTICE COLLINS: I accept, if you had not applied to amend he would have got no costs at all, because he would be caught by Bolton in those circumstances.

[64]MISS COLQUOUN: Then, my Lord, I would like to understand that it is a special feature.

[65]MR JUSTICE COLLINS: Special feature is the need, which might have arisen to deal specifically with the aspects that they have dealt with in the evidence of the amended ground and why it was that the EIA was not required. Because that was not an aspect that the Secretary of State ever was concerned with, because it was never before the Secretary of State.

[66]MISS COLQUOUN: No my Lord, it was never said on the Council's behalf or case we, that Bristol had ever asked for this as a matter -- there is no debate about it having been put forward at any point and therefore I would suggest that.

[67]MR JUSTICE COLLINS: It is not a matter for the Secretary of State directly, this is a matter for the interested party far more than the Secretary of State to kill it because the Secretary of State could hardly, or the Inspector could hardly be criticised, could he, for not dealing with something that was never put before him? It is only if it ought to have been put before him that it is possible to argue that the decision is wrong. I think it is a sort of Leyland Justices type of case - you know what I am referring to there? In that case it was the prosecutor failed to produce certain material. It is an approach that has been adopted in other cases. If a party to a planning appeal fails to deal with a matter which in law ought to have been put before the inspector because of the relevant facts, it is possible in those circumstances, notwithstanding no fault in the decision on material known, to quash. This is particularly of course the case in connection with the Directive because if, for whatever reason, the Directive has not been complied with then it is important I think that the law is complied with. But in those circumstances, although the decision might be quashed, it may well be that the Secretary of State is entitled to the costs from whoever fails, probably a combination, possibly a combination.

[68]MISS COLQUOUN: My only point is that there was my Lord, would be that Mr Maurici was quite capable of responding.

MR JUSTICE COLLINS: He is capable of doing anything I know, but it was much more... (Laughter)

[70]MISS COLQUOUN: My Lord I will sit down.

[71]MR JUSTICE COLLINS: I am sorry, I think this was a situation where you brought upon yourself the extra costs and I am going to award, as I say, £5,000 -- that is a round figure, I know but it covers everything.

[72]MR ELVIN: We are grateful.

[73]MR JUSTICE COLLINS: Can I ask for you to please draw up the necessary orders to put because simply it is more convenient to do it that way. I do not mind who does it. He will give you the necessary email or whatever.

[74]Thank you, all of you.