Privett, R (On the Application Of) v Gravesham Borough Council [2016] EWHC 1276 (Admin)

Case No CO/4313/2015[2016] EWHC 1276 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 18 March 2016
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE JAY
Between
THE QUEEN ON THE APPLICATION OF PRIVETTClaimantv
Between
GRAVESHAM BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International Limitedtrading as DTI8th Floor, 165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr C Banner and Mr M Fraser (instructed by Clyde & Co LLP) appeared for ClaimantMr J Lopez (instructed by Sharpe Pritchard) appeared for Defendant
J U D G M E N T (As Approved by the Court)

Introduction

[1]In this claim for judicial review, Mr Simon Privett ("the claimant") challenges the grant of planning permission to BP Oil UK Limited ("the interested party") for development at Tollgate Hotel, Watling Street, Gravesend, DA13 9RA ("the site") on 29 July 2015.[2]There are four grounds of challenge. The essence of the claimant's case is that relevant decision makers within the Gravesham Borough Council ("the defendant") were mislead by errors and omissions within the Planning Officer's report. Essential Factual Background[3]The site lies between the A2 at Tollgate Junction (and the A2 slip road eastbound) and the old Roman road in Gravesend. To the north of the site and the Roman road lies a 24-hour service station owned and occupied by the claimant. It includes 12 vehicle pumps, a Spar convenience store and a Subway sandwich restaurant. The site, comprising 1.01 hectares, is currently unoccupied. There are a number of former hotel buildings which lie vacant.[4]The interested party's proposed development is described as "demolition of former hotel/restaurant and erection of petrol filling station and forecourts [with 18 petrol pumps] with underground fuel tanks, sales building with ATM, restaurant and drive-through facility, AC/refrigeration units, refuse/recycling, substation, vehicular access, parking provision and associated works and services".[5]Planning permission for this development was granted in January 2014 but, following the issue of judicial review proceedings and the grant of permission to proceed by Lewis J, this permission was quashed by consent. At that stage the interested party was proceeding on the basis that the development was "inappropriate development" for the purposes of the Green Belt Policy within the NPPF, and that "very special circumstances" were therefore needed to be demonstrated to justify it. The defendant's Planning Officer has informed me in evidence that from his perspective a prior question arose, namely whether approval could be given under bullet point 6 to paragraph 89 of the NPPF. But, to my mind, this is all water under the bridge and nothing now turns on it. The consent order records that the defendant accepted that it had failed properly to apply the correct policy tests for the development in the Green Belt. It seems to me that next to nothing may be gained by attempting to analyse exactly what the defendant was accepting.[6]In October 2012, the interested party submitted a revised planning design and action statement which adopted a new position. This stated at paragraph 4.7:
"It is evident that the development comprises a previously developed site which will not when redeveloped have a greater impact on openness. The scale and volume of the proposed built development will be significantly lower than that of the former hotel and restaurant buildings. Therefore, the development does not represent an inappropriate form of development and it is not necessary to demonstrate the existence of very special circumstances."
[7]The claimant's planning consultant strongly contested this analysis. One of the objections made was that the interested party had taken an overly narrow approach to the issue of openness.[8]In due course, the defendant's Planning Officer's report was made available. It is a lengthy document which assesses the application in the light of the material received both before and after the quashing of the original permission. Paragraphs 8.37 - 8.51 are clearly material to this challenge and these should be regarded an incorporated by reference into this judgment. That said, the whole of the Planning Officer's report needs to be seen in context.[9]The interested party's application was determined by the defendant's Regulatory Board on 22 July 2015. The sequence of events appears to be that a full site inspection was conducted by the Board on 20 July (two site views had previously been undertaken by the Board in respect of the original application). There was a pre-determination meeting on 21 July. On 22 July, the Board heard presentations from the interested party's planning agent and the defendant's case officer as well as objections from the claimant.[10]In my view, the following paragraphs in the first witness statement of the case officer Mr Peter Price are relevant:
"7. I confirm that the Board's site inspection also enabled questions to be asked by Members in relation to the Application and for responses to be given by both officers as well as by the planning agent, then in attendance on behalf of the Interested Party. The inspection also enabled Board Members to appreciate, at very close quarters, the extent of all existing built development on the Site, including all areas of hardstanding (e.g. for car parking/access roads/turning areas) and grassed/landscaped areas. ... 26. It was acknowledged that the application site location plan (existing) did not quantify specifically in sq.m. the existing areas of hardstanding and landscaped areas (annotated as grass/foliage). Nevertheless, the site inspection undertaken by Board Members, the aerial imagery and presentation given to the Members allowed them a repeated opportunity to fully appreciate the significant extent of existing hardstanding areas. 27. As such, the Board Members were made fully aware, as part of their comparative assessment of the overall impact of development on openness, that the proposed development would result in an increase in the net footprint of hardstanding areas specifically, but conversely result in a significant reduction in the new footprint of buildings on the Site (including of two storey development)."
[11]On 22 July 2015, planning permission was resolved to be granted by the Board subject to conditions. As I have said, the formal document is dated 29 July 2015. Legal Framework[12]The defendant's statutory development plan subordinated local policy to "national policies for protecting the Green Belt and policies in this plan". In other words, local policy was yoked to the NPPF. The Green Belt policies within the NPPF are extremely familiar. At the heart of this case lies paragraph 89 and bullet point 6, which provide:
"A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are: ... • limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development."
[13]Mr Charles Banner, for the claimant, submits that the concept of "openness" is concerned with the extent to which the land in question is kept free from any built form and intensified use. I agree with that formulation. Thus, "openness" is not just concerned with visual intrusiveness or impact (see Sullivan J in R (Heath & Hampstead Society) v Camden LBC [2007] 2 P&CR 19 and Green J in Timmins v Gedling Borough Council [2014] EWHC 654 (Admin)). A comparison is required of the extent of all built-on land before and after the development in question. Further, and as a related matter, "footprint" is not the sole touchstone; bulk, height, mass and prominence are also relevant considerations (see Surrey Homes Ltd v Secretary of State for the Environment 2000, unreported, 18 August). Additionally, if development includes a material change in the intensification of use in the Green Belt, that fact alone may lead to the conclusion that openness has not been maintained.[14]The parties before me agree that a planning officer's report merits broad interpretative latitude not least because he is not the decision maker. It is reasonable to infer that the Regulatory Board's reasons for granting the application for planning permission were broadly similar to the Planning Officer's recommendation. If the Planning Officer's report contains errors of law (see R (Lee Valley Regional Park Authority) v Broxbourne Borough Council [2015] EWHC 175 (Admin)) or is significantly misleading (see Oxton Farms v Selby District Council, Court of Appeal, unreported, 18 April 1997) this court should intervene on an application for judicial review. The Claimant's Case[15]As I have said, Mr Banner, for the claimant, advanced four grounds, which may fairly be encapsulated as follows. His first ground is that the Officer's report erred in failing to quantify, either at all or in a consistent manner, the entire footprint of built-on land before and after the development. Given the breadth of the concept of built-on land and that it is not limited to buildings or issues of visual intrusiveness, the Officer's report was impermissibly circumscribed in that it looked only at the external footprint of the building and properly quantified the salient aspects at paragraphs 8.42 and 8.43. Although hardstandings were mentioned at paragraph 8.45 ("the proposals do not include significant areas of parking and hardstandings and access roads"), no figures were provided to enable a proper quantitative analysis to be made of the before and after amount of hardstanding. Moreover, Mr Banner submitted that paragraph 8.45 of the report was misleading in that it suggested that the quantum of hardstanding and green space areas was similar judging the matter ex ante and ex post. The claimant also makes a subsidiary point in relation to the subterranean tanks, which are not referred to in the Officer's report and must have resulted in a significant increase in the calculation of built-on land even if they would not have been visible.[16]Mr Banner submitted that the Officer's report therefore failed to take into account a material consideration, proceeded on the basis of an illogical approach (because there could be no proper basis for failing to quantify the handstandings given that the buildings were accurately measured and quantified) and also proceeded on the basis of a material error of fact, namely the extent of hardstanding before and after the development was "similar" (see paragraph 8.4 of the report).[17]The claimant's second and third grounds, which may be taken together for these purposes, are that the Officer's report failed to have regard to material considerations, namely "bulk, mass and/or prominence" and the effect of intensification on the use of the site. Mr Banner's point is that the Officer's report does not address these issues.[18]The claimant's fourth ground is that paragraph 8.47 of the Officer's report took into account immaterial considerations, namely planning permissions granted in 1994 and 2002, albeit ones which were not implemented. Discussion and Conclusions Ground 1[19]Mr Banner fully accepts that the onus rests on him to show that the Planning Officer's report, in particular paragraph 8.45, was significantly misleading. An issue arises as to whether a report may mislead by omission rather than by commission. Mr Banner seeks to collapse any distinction between acts and omissions in this regard, pointing out at that if there were such a distinction a claimant would never be able to prove that material considerations were not taken into account.[20]I see his point, at least in part. But, in my view, it proves too much. It remains incumbent on the claimant to demonstrate that the report was significantly misleading and in this context this means that by it the relevant decision-makers were inferentially thrown off the lines of inquiry and processes of reasoning which they ought to have undertaken. If a report contains a positive legal error, it is much easier for a claimant to show that the decision maker erred. That would be the natural rebuttable inference to draw. If a report fails to draw attention to something, the inference is weaker because the defendant would be able to argue that these reports are not comprehensive, that decision makers have their own expertise and are able to deploy their own planning judgments. However, even in an omissions case, it seems to me that circumstances may arise in which a report, read in context, creates a misleading picture by failing to mention matters which should be covered.[21]Paragraph 7.82 of the Officer's report noted the terms of part of the claimant's objection as follows:
"The objection indicates that the assertion that the scale of the development is significantly less than existing built development is not quantified and only footprint and floorspace is considered by the applicants and not the amount of hardstanding."
[22]The Officer's report did not comment on this objection save to observe, correctly in my view, that the issue of openness was broad (see paragraph 7.83). This avails the defendant's case on grounds 2 and 3. But, in my judgement, the point was at least being flagged up to the Board that the absence of quantitative evidence should be borne in mind when evaluating the issue of scale. On analysis, this is a point which without more tends to cut both ways.[23]I agree with Mr Juan Lopez, for the defendant, that there is nothing in paragraphs 8.40 to 8.47 of the report which would have led the Regulatory Board to believe that a relative planning assessment should not be carried out in relation to hardstanding. However, this does not dispose of the issue. In my judgment, a careful consideration of paragraphs 8.41 - 8.45 of the report is required before a proper conclusion may be reached of whether the decision maker was likely to be diverted from pursuing a proper line of inquiry and analysis. The material was available to enable quantitative conclusions to be made in relation to the scale of the buildings judged two-dimensionally. I understand that this material had been furnished by the interested party. The overall conclusion on the figures was that the proposed development, including the canopies but excluding the hardstandings, comprised 1,417.25 sq.m. whereas the existing footprint was 1,950 sq.m. Accordingly, and measured solely in this way, the proposal was almost 25 per cent less than the existing built footprint on the site.[24]Similar material has not been made available by the interested party in relation to the hardstandings and the green space areas. No scale plan of the existing layout was apparently available but I have been shown good scale plans of the proposal. It is possible to discern the proposed new hardstanding areas as well as the subterranean fuel tanks on those plans. It is clear from Mr Price's first witness statement that it was, and is, possible to calculate the total hardstanding and green space areas from those plans using, I infer, fairly basic software.[25]The claimant's planning agent had done his own calculations (see exhibit SKC1). Paragraph 33 of Mr Price's first witness statement states that the claimant's figures "are reflective of the assessment ... given in my officer's report". I do not interpret this as saying that Mr Price had actually done the calculations for himself, particularly when one bears in mind the parenthesis which I have omitted in the foregoing citation - "albeit not quantified in sq.m." On the other hand, paragraph 5 of Mr Price's second witness statement states that "a quantitative comparative analysis was undertaken by myself (and subsequently, the Board) in relation to all of the built development/built-on land".[26]I pressed Mr Lopez on this and ultimately he agreed that I should not read paragraph 5 as referring to any specific calculations. Had these been performed, I would have expected them to have been made available and I would also have expected them to feature in the report. Various figures are set out in paragraphs 34 and 35 of Mr Price's first witness statement. These are advanced in order to "confirm some inaccuracies in the claimant's calculations". That may be so, but they also confirm that the green areas assessed ex ante and ex post fell by about 50 per cent and the hardstanding areas increased by about 40 per cent. To my mind, these divergences are significant. Paragraph 8.45 of the Officer's report refers in terms to significant and extensive hardstanding in the context of "new built form openness". In my view, the issue, at least at that stage, was correctly characterised. However, the paragraph goes on to say:
"Whilst it is acknowledged that the proposals do include significant areas of parking and hardstandings and access roads to serve the development the current hotel site has only very limited green space but similarly has significant areas of car parking and circulation routes to serve the hotel rooms and in front of the main hotel reception/restaurant building."
[27]In my judgment, there are real difficulties with this sentence. Although the Planning Officer is not purporting to make a precise quantitative evaluation, the clear impression that he is giving is that the hardstanding areas will be broadly similar in extent judging the matter before and after. If the Planning Officer had in fact done some calculations (as he now claims that he did), this sentence would be seriously misleading. Somewhat counter-intuitively perhaps, the defendant is in a better position if I reject paragraph 5 of the Planning Officer's second witness statement, as indeed I am disposed to do. However, if that is the premise on which I must proceed, I agree with Mr Banner that the Planning Officer cannot justify his failure to perform simple calculations in order to aid the Regulatory Board in its deliberations. To the extent necessary, I would go further and hold that it was irrational not to carry out these calculations. The result is that the Board received a bland statement of the position in relation to green spaces and hardstandings which was significantly misleading and erroneous in fact (see E v Secretary of State for the Home Department [2014] QB 1044).[28]I cannot accept Mr Lopez's submission that paragraph 8.45 contains an innocuous planning judgment which takes into account all relevant matters including bulk, height and prominence as well as the likely salience of the issue of hardstandings. I fully appreciate and understand that hardstandings are likely to be less important in terms of openness than two-storey buildings and large canopies. However, paragraph 8.45 of the report is limited to matters of scale and, in my view, serves to make a comparative judgment in that particular context. Furthermore, although I take the point too that the Regulatory Board could make their own judgments based on the site visit, the photographs and the plans, Members would clearly have been influenced by the second sentence of paragraph 8.45. If Members had not been so influenced, I would have expected to see a witness statement from them to that effect.[29]The position would be different if the report had contained no quantitative assessments at all and had paragraph 8.45 omitted the second sentence. It is the combination of these matters which, in my view, has led to a misleading report, which in the absence of contrary evidence from the Regulatory Board is likely to have diverted Members from undertaking a proper inquiry into this issue.[30]I do not take a similar view in relation to the subterranean fuel tanks. Their location was not mentioned in the Planning Officer's report but the Regulatory Board knew where they were going, knew their approximate dimensions and, most importantly, that they were below ground. This last factor is a highly material consideration. Unless it can be said that the inference must be that the Regulatory Board overlooked the presence of these tanks altogether, it seems to me that there is nothing in this point. In particular, and in contrast to paragraph 8.5 of the report, Members could not have been mislead. Grounds 2 and 3[31]The parties are in agreement that matters of bulk, mass, prominence and intensification are relevant to the issue of openness in the context of the Green Belt policies. An examination of what might be described as the reasoned heart of the Officer's report disclosed that these matters are not explicitly addressed. This omission provides the springboard for Mr Banner's submission that the Regulatory Board was significantly misled, particularly when one bears in mind the presence of the substantial canopies (to be built approximately 6 metres above the forecourt) and the fact that this is to be a busy service station including a drive-through McDonald's outlet liable to intensify the use of the site in a matter which could clearly be quantified and assessed. I see some of the force of Mr Banner's submissions in that regard but, in my judgment, they serve to treat the Planning Officer's report as if it were some sort of examination paper, statutory instrument or set of legal directions to a notional jury. It has been emphasised on numerous occasions that the report is addressed to a knowledgeable readership with a working knowledge of the statutory test. It is not incumbent on the Planning Officer to set out relevant policies in full. The Regulatory Board also had the benefit of the application for permission, including plans, photographs, presentations of their meeting and information which could be gleaned from the site visit.[32]In my judgment, the Officer's report needs to be placed in its proper context as a general guide to decision making not as a form of straitjacket. Furthermore, it is quite permissible, in my view, to look beyond what I have called the reasoned heart of the report, namely paragraphs 8.37 - 8.51. In short: (i). the canopies, including their height, are described in paragraph 4.4 and are mentioned in paragraph 8.41; (ii). the subterranean fuel tanks do not feature expressly in the summary of the proposal (see section 4 of the Officer's report) but, as I have pointed out, they are identified within the application itself. Anyone with even a basic knowledge of petrol stations and forecourts would understand that storage tanks are essential; (iii). section 4 of the report does clearly address activity levels (see paragraphs 4.3, 4.9, 4.10, 4.11 and 4.12). Section 7 of the report also addresses such levels (see paragraphs 7.9, 7.20, 7.26 and 7,37).[33]I also accept Mr Lopez's submission that issues of bulk, height, mass and prominence add next to nothing to this case. In terms the buildings, these matters are readily comprehended within the metric of scale or physical dimension, which has of course been fully addressed in paragraphs 8.41 - 8.45. In terms of the hardstandings, these softer considerations all tend to improve, rather than diminish, the interested party's case on openness. Moreover, the Regulatory Board had ample information before it to assess these softer considerations in the light of the wider picture.[34]The issue I have to address is whether the Officer's report significantly mislead the Regulatory Board to the extent that the latter was deflected from a proper assessment of these matters. In my judgment, it has not been demonstrated that this was the case. Grounds 2 and 3 therefore fail. Ground 4[35]Mr Banner is correct to submit that a fair reading of paragraph 8.47 of the Office's report is that the planning history, including applications determined as long ago as 1994 and 2002, might be of some relevance to the issue presently under scrutiny. However, as soon as one begins to ask oneself the question - what possible relevance could this history have? - the reader is left floundering for an answer.[36]In my judgment, it is not arguable that the Regulatory Board was deflected from a proper inquiry by anything said in paragraph 8.47. Ultimately, Mr Banner did not press this point. Discretion[37]Mr Banner has persuaded me on his first ground, but not on his remaining grounds. Even so, I must refuse relief in the exercise of my discretion if satisfied that the outcome would very likely have been the same absent the error of law I have identified.[38]I am not so satisfied. The planning judgment that the Regulatory Board would, or even might, have made had it not been led into the error I have identified must be seen as properly inscrutable. We are in the zone of true agnosticism, not very probable outcomes. Paragraph 9.1 of the Officer's report states in terms that this was a difficult planning judgment. On the other hand, had I found for the claimant on the second, third and fourth grounds (either individually or cumulatively) but not the first, I would have favoured Mr Lopez's submissions under the rubric of discretion.[39]This claim succeeds on the first ground alone and the planning permission given on 29 July 2015 must be quashed.[40]Who appears for the claimant today?[41]MR FRASER: Mr Matthew Fraser, my Lord. I apologise on behalf of Mr Banner that he could not attend today.[42]MR JUSTICE JAY: No, he said he was not going to be here. You have an application for costs?[43]MR FRASER: I do indeed, yes, my Lord.

MR JUSTICE JAY: Mr Lopez?

[45]MR LOPEZ: There are two observations on the costs schedule, my Lord.

MR JUSTICE JAY: You are ahead of me.

[47]MR LOPEZ: There is an application for permission.[48]MR JUSTICE JAY: We will deal with that. I do not have a costs schedule. (Handed). Thank you.[49]MR LOPEZ: There are two items on the costs schedule with which the Council takes some objection. At the foot of the first page ones sees at recital(1) under (iv) 24 hours 12 minutes at the hourly rate of 1 and that corresponds to Mr David Heales at the top, as you can see. We say that that time spent is excessive. We cannot deduce from this exactly what time has been spent on what but we say that that is excessive and could be made the subject of summary assessment. Secondly, over the page, underneath (iv) recital(2) reads 1 hours 48 minutes at hourly rate 2. At the top of page 1 that corresponds to Mr David Ould and it appears to be then for the attendance of yesterday that two fee earners have been charged out. That on the face of it would be wrong to do and so we say that that second recital ought to be struck through. So the £396 figure ought to fall.

MR JUSTICE JAY: That is helpful.

[51]Mr Fraser, do you have any to say about those two items?[52]MR FRASER: I do, my Lord, yes. Just addressing the second one first because I think that is more simply resolvable, the position from our side is that that cost in fact does not relate to the attendance of the second solicitor yesterday and in fact that it relates to the court clerk of my instructing solicitors who attended court to lodge papers on a number of occasions. So that is a collective.

MR JUSTICE JAY: What about all these document perusals?

[54]MR FRASER: My Lord, I submit that it is an appropriate amount of time given the nature of this case. In relation to the time spent on documents, I think the first point in response is that there were approximately 900 pages before the court, 500 that were submitted in the claim and then 400 in addition that were in the second claim bundle, my Lord, and then 400 coming from the defendant. The other point to note is that counsel, i.e. Mr Banner, was only involved to the extent of drafting and representation and so the bulk of the document review, as it were, was being undertaken by my instructing solicitor. And, of course, there was a significant amount of preparing of evidence and responding to the witness evidence of the defendant that needed to be undertaken. Finally, I understand, and again I do apologise because I am seeking to catch up on having missed what has been going on before me but there was, I understand, a third witness statement filed by the defendant 5 days before the substantive hearing with attached exhibits that required, of course, further investigation and document review on that basis. So, in my submission, given the nature of this case -- my Lord, I also add that there was a Freedom of Information Act -- the position seems to be that our third witness statement addressed a point that arose out of our freedom of information request, which required trawling through quite a lot of redacted material in order to find the relevant information.[55]MR JUSTICE JAY: That is helpful. I am asked to make a summary assessment. Based on my experience of other cases and having a feel for the scale of this case, I am going to reduce the item (iv)(1), the claim in the sum of £9,680, by 50 per cent. So that is £4,840 which comes off. I am not going to take off the £396. So it is £34,186 minus £4,840, plus value added tax.[56]MR FRASER: My Lord, I am sorry, there is just one more matter. This schedule of costs was served on the defendant yesterday and it does not take into account costs for attendance today. So I wonder if your Lordship would be minded to add something in the region of £1,000 to account for my attendance and my instructing solicitor.[57]MR JUSTICE JAY: That is quite a lot. We will be through in 45 minutes. It depends on the length of the application for permission to appeal but it will not be long. What is your brief fee for today?[58]MR LOPEZ: My Lord, I understand it to be £400.

MR JUSTICE JAY: Did you have to do any pre-reading?

[60]MR FRASER: This morning, my Lord, I just had to get up to speed with what was going on and have discussions with my instructing solicitor and make sure I was not going in completely empty handed, as it were.

MR JUSTICE JAY: Mr Lopez, what do you say about that?

[62]MR LOPEZ: My Lord, an unfavourable observation, I am afraid. First in terms of the instructing solicitor. I had understood through email correspondence, which I have seen properly, that he would attend in person absent counsel in order just to deal with matters administratively. The picture now changes.

MR JUSTICE JAY: I do not think that was my understanding.

[64]MR LOPEZ: It possibly was our understanding at a given stage. I think it was slightly confusing.[65]MR JUSTICE JAY: But it has saved time because it obviated the need for me to come back to costs later. So I think it is reasonable to appear by counsel.[66]MR LOPEZ: Very good. But if that be the case, I do say that the figure of £1,000 plus VAT is objectionable. I make no comment expressly in terms of counsel's fees, of course. I will leave that for my Lord. But as a global sum, £1,000 is a costly figure. I do add that given that it is simply a matter of swift judgment today, I know that no fees have been charged certainly for my purposes of attendance today.

MR JUSTICE JAY: Well --

[68]MR LOPEZ: That is one of choice.

MR JUSTICE JAY: That is a matter between your clerk and the local authority.

[70]MR LOPEZ: It is, my Lord.

MR JUSTICE JAY: I am going to say in relation to today the claimant can have £500 plus VAT.

[72]MR LOPEZ: My Lord, I add this final observation. It is, of course, subject to the Aarhus cap as a global figure and so when we look back at the figure of £9,680 minus £4,840 plus VAT and plus VAT on the balance and plus the £500 plus VAT, that will exceed the £35,000 cap.

MR JUSTICE JAY: So the claimant's costs are limited to £35,000 in any event.

[74]MR LOPEZ: As long as that is the end sum.

MR JUSTICE JAY: That is the bottom line.

[76]MR LOPEZ: Very good. In terms of the application for permission, my Lord, it is made on the basis of the finding regarding paragraph 8.54 of the Officer's report and the point is, in short, this: that even if there had been error, either expressly or inferentially, within that report, which we say that there was not, but if that be the case, we say that on a proper application of Oxton Farms that could not have led the Committee to have been seriously mislead. That is the short point.[77]MR JUSTICE JAY: Let me put it in these terms. I did not find this case altogether clear cut and I confess when I came into court my provisional view was actually against the claimants but I changed my mind by the end of the hearing and that was confirmed when I was typing up my judgment. But that does not mean you have got a good appeal point, it just means that the case was quite finely balanced. But the fine balancing really turns on points of fact, not really points of law and I think if you want to interest the Court of Appeal in this case you are going to have to apply to them. So I am refusing permission. Thank you nonetheless for your assistance. You will want the papers back if for no other reason than to reconstitute them for a Court of Appeal bundle. I am required to tell you what the time limit is. You know what it is. It is 21 days for making an application to the Court of Appeal. Thank you for your help.