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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Batey, R (on the application of) v Boston Borough Council & Anor [2008] EWHC 3516 (Admin) (02 December 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/3516.html Cite as: [2008] EWHC 3516 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		2nd December 2008

1. THE DEPUTY HIGH COURT JUDGE: This is an application by Mr Robert Batey for judicial review of a decision notified on 4th July 2007 by the Planning Committee ("the Committee") of Boston Borough Council ("the Council") to grant permission to New Linx Housing Trust ("the Trust") for the construction of 32 apartments at 1 Tattershall Road, Boston, Lincolnshire, on a site previously occupied by a builders' merchant. The site is adjoined by a mixture of residential and commercial property. Mr Batey lives at an adjoining property at 2 Tattershall Road. The decision to grant planning permission was taken at a meeting of the Committee held on 26th June 2007 ("the Meeting"), chaired by Robert Dungworth and attended by, amongst others, Councillor Anne Dorrian, its vice-chair.
2. Permission to apply for judicial review was granted on paper by Collins J on 15th October 2007, on the grounds that it was arguable that the Council did not properly appreciate the extent of the overshadowing of Mr Batey's property due to the failure to have written representations before the Committee, following poor advice given by an officer. Collins J refused permission on a further ground that the decision was unreasonable, because it would allegedly lead to an actionable nuisance by restricting Mr Batey's right to light on the basis that Mr Batey's remedy for any such nuisance would be an injunction in a private law action.
3. On 24th November 2008, Pitchford J refused Mr Batey's application to raise an additional ground of challenge, namely that the Committee's chairman unlawfully predetermined the application and/or consideration of overlooking/overshadowing. Pitchford J's refusal was on the grounds that there was no consent to the application and that the Council would have insufficient time to respond to the evidence before the hearing. However, it appears that Pitchford J was unaware of the existence of a draft consent order, dated 21st November 2008, to allow argument of the additional ground and the admission of supporting evidence contained in a witness statement of Councillor Dorrian, dated 17th November 2008, a witness statement of Mr Batey dated 20th December 2007 and of reply evidence on the Council's behalf.
4. At the start of the present hearing, I agreed to make an order in the terms of the draft consent order. There was no application for cross-examination of any of the makers of the various statements.

The background facts

5. It is common ground that layout of Mr Batey's house is unusual, in that the ground floor windows at the rear all look out on to a car body workshop. Beyond the workshop is a wall more than 2 metres high, and beyond that the site of the proposed development. Mr Batey's ground floor windows cannot be seen from the ground floor of the site. The Trust had made a previous application for planning permission in December 2006, which was later withdrawn.
6. On 2nd January 2007, Mr Batey wrote a manuscript letter to the responsible planning officer at the time, Mr Oliver, objecting to that application. The letter set out four grounds of objection, of which the key one for present purposes is "invasion of privacy and light".
7. In April 2007 the Trust submitted a fresh application for planning permission, to which Mr Batey again wished to object. According to Mr Batey, he was given advice by Mr Oliver to the effect that, rather than write a fresh letter of objection, it would be sufficient for Mr Batey to notify the Council of his objection to the fresh application by reference to his letter of 2nd January 2007. That is what Mr Batey did in an undated letter, received by the Council on 26th April 2007, in which Mr Batey stated that he still considered that his previous arguments held true. Unfortunately, the 2nd January 2008 letter was omitted from the planning application file in respect of the fresh application. By the time of the meeting, Mr Oliver was no longer the case officer and Mr Nicholas Harding had stepped into his shoes.
8. On 11th June 2007 Mr Harding prepared his report ("the Report") to the Committee on the Trust's application. On 15th June 2007, in response to Mr Batey's letter received on 26th April 2007, the Council sent Mr Batey a standard letter which advised interested parties of their ability to download or obtain a hardcopy of the report, their ability to submit materials in advance of the Committee meeting and their entitlement to speak at the meeting. Mr Batey duly applied to speak at the meeting as an objector in relation to Trust's application, but he did not submit any materials in advance.
9. A few days before the meeting, a briefing meeting took place, attended by the chairman, the vice-chair and Mr Harding, to which I shall refer in more detail below. The meeting was considering not only the Trust's application for planning permission, but also another separate application in relation to a proposed development at Gardeners Walk, for which there was a planning officer's report. Both applications involved issues of overlooking privacy and overshadowing. At the meeting the Committee first considered the Gardeners Walk application, which was for four units, and, contrary to the planning officer's recommendation, the Committee refused planning permission on the grounds of overlooking and loss of privacy. Mr Harding's evidence is that this refusal was later overturned on appeal.
10. The Committee then considered the Trust's application. Mr Harding presented the report and showed a series of slides, which upset Mr Batey, because he regarded the report as incorrect, in that the archway which was discussed was not the spray body workshop but his home. During his oral presentation, Mr Batey says that he spent much of his allocated 3 minutes trying, without success, to correct the wrong impression given by the case officer. When put to the vote, the eight voting members of the Committee were split equally. Planning permission was granted on the casting vote of the chairman.

The issues

11. There are three issues before the court:

1. Did the Committee chairman unlawfully predetermine the planning application and/or the consideration of overlooking/overshadowing?

2. Did the Committee fail to have proper regard to a relevant material consideration, namely the effect of overlooking/overshadowing?

3. Was there procedural irregularity, in that the Committee did not have before it a letter of objection from Mr Batey which ought to have been before it?

There is some overlap between the second and third issues.

12. Issue 1: did the Committee chairman unlawfully predetermine the planning application and/or the consideration of overlooking/overshadowing? The amended grounds allege that during the briefing meeting its chairman expressed a strong preference for the grant of permission, which was inconsistent with the need for him to approach the matter with an open mind at the meeting and that during the meeting he failed to consider Mr Batey's objection with an open mind, or else his demeanour at the meeting was such as to give a fair-minded observer the impression that there was a real risk that his mind was closed in relation to the objection, and the chairman's closed mind was the Committee's closed mind, in circumstances where the Committee was tied and, with his second vote, he was the sole decision-maker.
13. The Council's position is that the chairman did nothing, either at the briefing meeting or the meeting itself, which was inconsistent with his approaching the matter with an open mind, and there was nothing in his demeanour to give a fair-minded observer the impression which Mr Batey says was created.
14. In support of this ground, Mr Batey relies principally on evidence in Councillor Dorrian's statement of 17th November 2008. Her evidence is, in summary, that at the briefing meeting which preceded the meeting, the chairman expressed the view that there was no reason why the Trust should not get its permission, and that at the meeting he did not seem to her to have approached the issues with an open mind. Her impression, in particular from his demeanour at the meeting, was that he was not interested in listening to Mr Batey. She refers to the chairman's "noticeable habits" when bored or in disagreement with something, of chewing gum very fast, folding him arms, reclining as far back as possible in his chair and sighing audibly. Her concerns were so great that after the meeting she discussed them with other members of the Committee, Councillors Dennis and Staples, who agreed that the chairman did not seem to approach his responsibilities with an open mind. On the following day she made a complaint to the chief executive and to the leader of the Council.
15. Mr Lumb is the Council's assistant chief executive. He attended the meeting. His evidence, contained in his statement of 27th November 2008, is that Councillor Dungworth was "quite strong" and had a "strong assertive style", but at no point told the Committee what to do or directed the vote; he simply aired his own views about the application. Mr Lumb's evidence corroborates Councillor Dorrian's evidence, in that he states that following the meeting he was contacted by the chief executive, Mick Gallagher, about Councillor Dorrian's complaint, and received comments from her and Councillor Staples about the manner in which the meeting had been chaired and their concerns that Councillor Dungworth had been trying to lead the meeting too strongly by the assertive expression of his own views.
16. Councillor Dungworth's evidence, in his statement of 26th November 2008, is that he does not recall exactly what he said at the briefing meeting, but does recall having expressed a view that the overlooking issue in relation to the Tattershall Road application appeared to have been dealt with by the amended plans, which included canted windows. He also explored with Mr Harding further possible reasons for the refusal of the application. He denies that he made any comment at either that meeting or the Meeting or in any way led the Meeting in a way which suggested that he had prejudged the application.
17. The authorities establish that in considering this aspect of the case:

1. A distinction must be drawn between, on the one hand, a legitimate predisposition towards a particular outcome, which is consistent with a preparedness to consider and weigh relevant factors in reaching the final decision and, on the other hand, an illegitimate predetermination of the outcome: see National Assembly for Wales v Elizabeth Condron and Miller Argent (South Wales) Limited [2006] EWCA Civ 1573 per Richards LJ at paragraphs 42 and 43.

2. In determining whether there was legitimate predisposition, as opposed to illegitimate predetermination, it is for the court to put itself in the shoes of a fair-minded observer and take on the responsibility of deciding whether there is a real risk that Councillor Dungworth approached the grant of the Trust's planning application with a closed mind, the expression used in Persimmon Homes Teesside Limited v R (Kevin Paul Lewis) [2008] EWCA Civ 746 per Pill LJ at paragraph 10 in preference to apparent bias and predetermination (see Persimmon at paragraph 63).

3. The court's task is to ascertain all the circumstances, as they are now known, which have a bearing on the issue. The court must then ask itself whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that Councillor Dungworth approached the grant of the Trust's planning permission with a closed mind: see Flaherty v National Greyhound Racing Club Limited [2005] EWCA Civ 1117 per Lord Justice Scott Baker at paragraph 27, and Gillies v Secretary of State for Works and Pensions [2006] UKHL 2 per Lord Hope at paragraph 17, both quoted in Condron per Richards LJ, at paragraphs 38 and 40 respectively.

4. Central to this consideration must be the recognition that councillors are not in a judicial or quasi-judicial position, but are elected to provide and pursue policies. Members of a planning committee would be entitled, and indeed expected, to have express views on planning issues (see Persimmon at paragraph 69).

5. The relevant facts must be viewed objectively and no weight placed on how a particular individual perceives them (see Condron at paragraph 42). However, that does not mean that evidence of a particular person about the circumstances is to be disregarded.

6. The fact that a planning committee member has received relevant training and has agreed to be bound by a code of conduct is a consideration to which some weight can properly be attached when determining the issue of a closed mind (see Condron at paragraph 53).

18. Mr O'Reilly, who appeared on behalf of Mr Batey, submitted that the evidence that I have summarised above would lead a fair-minded and informed observer to conclude that there was a real possibility that Councillor Dungworth approached the grant of the Trust's planning application with a closed mind. It was submitted that the question of a closed mind was particularly acute, given that the Committee's decision was taken on his casting vote.
19. It was further submitted that little or no weight should be given to the formal training in determining planning applications and in chairing planning committee meetings, which the evidence showed had been received by Councillor Dungworth before he began to act as chairman. This is said to be because that training had not stopped Councillor Dungworth from engaging in certain conduct which did not accord with certain provisions of the Council's planning and good practice code. For example, it was submitted that Councillor Dungworth, consistently with the code, ought not to have visited the sites which were the subject of pending planning applications on his own and ought to have declared at the meeting the views which he had expressed in the briefing meeting and the fact that he had previously acted as accountant to the Car Body Workshop.
20. Miss Wigley, who appeared on behalf of the Council, submitted that, viewing all the facts objectively, all that the chairman did was comment on an issue in the report which recommended the approval of the application and referred to the amended window design to address the overlooking issue, and suggest that the concerns about overlooking appeared to have been addressed. It was submitted that, taking Mr Batey's case at its highest, and assuming in his favour that the chairman actually said that he felt that there was no reason why the Trust should not get its permission, this amounts to no more than a legitimate pre-disposition in favour of the grant of permission in accordance with Mr Harding's advice and does not cross the line into an illegitimate pre-determination or closed mind.
21. In my judgment, the Council's submissions are to be preferred. I reject Mr Batey's submission that the evidence establishes that Councillor Dungworth sought to advocate the view that he had previously formed in a way which amounted to a predetermination by him of the Trust's application. Councillor Dorrian's contrary impression is, in my judgment, incorrect. Placing myself in the position of the fair-minded and informed observer, in the light of the circumstances as they are now known, and recognising that all the members of the Committee were entitled to have and to express views on the Trust's application, I conclude that there is no real risk that the circumstances would lead to the conclusion that Councillor Dungworth approached the grant of the Trust's planning application with a closed mind. Nothing which occurred at the briefing meeting or the meeting itself leads to the contrary conclusion.
22. In relation to the training which Councillor Dungworth received, it is far from clear, for the reasons advanced by Miss Wigley, that he was in breach of the code, but even assuming in Mr Batey's favour that he were, this would not affect my conclusion in the present case.
23. Issue 2, did the Committee fail to have proper regard to a relevant material consideration? Mr Batey alleges that the Committee failed to have regard to a relevant material consideration, namely the effect of overlooking/overshadowing. The Council accepts that the effect of overlooking/overshadowing is a relevant material planning consideration, but disputes that the Committee failed to have proper regard to it.
24. I remind myself at the outset that the weight to be attributed to considerations relevant to a decision is a matter for the decision-maker himself to determine as he thinks fit and the courts will not interfere unless he has acted in a Wednesbury unreasonable manner. However, it is for the court to decide, if the matter is brought before it, what is a relevant consideration in any particular case. In a planning context, the former is a matter of planning judgment; the latter is question of law which involves no view about the part, if any, which the law should play in the decision-making process. Those propositions are shown by, for example, Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, in particular in the speech of Lord Hoffmann at pages 764F-H, and 780E-H, and were not in dispute between the parties.
25. Mr O'Reilly submitted that the report was deficient, in that it did not bring home to the Committee the loss of natural light to, or overshadowing of, Mr Batey's property, which the proposed development would entail. He drew attention to paragraphs 2, 4, 6 and 7 of the report, in particular he submitted that:

1. The Committee would have been unaware from the statement in paragraph 2.2, that "to the north west of the [site] there is a car repair workshop and further residential accommodation", that this was a reference to Mr Batey's property.

2. There was a complete absence, in paragraph 4.1, of any mention of loss of natural light to residential accommodation, or to the overlooking of Mr Batey's property.

3. Paragraph 6.3 gave the wrong impression that Mr Harding had measured the site in relation to Mr Batey's property.

4. There was no express reference in paragraph 6.5 to 2 Tattershall Road being a residential property.

5. In the report's summary and conclusion, in paragraph 7.1, reference was made only to overlooking, which, together with the proposed building's dominant appearance, had been addressed through the use of single aspect windows and the introduction of a shallower roof pitch.

26. Miss Wigley submitted that there was nothing inaccurate or misleading in the report. In relation to overlooking, Miss Wigley highlighted paragraphs 2 and 6 in relation to the reduction in the building's height, and to paragraph 7. In particular, paragraph 6.5 states:

"The front block sits south east of No.2 Tattershall Road and is 3m from the site boundary. From this point of view this part of the development has the potential for impact on amenity. The windows in block facing the rear of No.2 and the car repair shop, have been angled so as to avoid any overlooking."

Paragraph 7.1 states:

"Due to the issue of flood risk, the proposal takes a three storey design with parking underneath. This has introduced the potential risk of overlooking and a dominant appearance to the building. These matters have been addressed through the use of single aspect windows and the introduction of a shallower roof pitch." ]

27. The Council refers to drawings numbers A0524/41 and A0524/42, which show the design of the windows on the north-west elevation, facing Mr Batey's property, and which form part of Mr Harding's presentation. Mr Harding's evidence in his first statement, dated 5th September 2007, is that in his presentation and his responses to questions put to him during the meeting, he was very clear about the nature of the neighbouring development and, in particular, the location of Mr Batey's property and the relation to it of Block A in the proposed development.

Drawing A0524/40 was simply the site layout plan, which it is normal practice to be included within the report to show the location of the site only, as the Committee would have been aware, not to show the layout of the proposed development. According to Mr Harding, during the debate that followed the meeting, the Committee members specifically debated the issues of loss of privacy and amenity and, in doing so, referred to its earlier refusal of permission in the Gardeners Walk application.

28. The Council says that one of the slides clearly showed the relationship of Mr Batey's property to the site and that any potential overlooking, specifically from stairwell windows, was unsurprisingly not raised by Mr Batey before or at the meeting, given the short dwell time of people passing those windows. It says that the issues of his loss of amenity and privacy were expressly debated and voted on, and were considered sufficiently serious by four of the eight voting members of the Committee that those members voted against the grant of planning permission.
29. In relation to the overshadowing of Mr Batey's home, the Council submits that Mr Batey referred briefly to this issue in his letter of 2nd January 2007, that he outlined his concerns in his presentation at the meeting and that the Committee took those concerns into account. It submits that the reasons for the grant of permission, which include a statement that "the siting and design of the development is such that there will not be excessive levels of overshadowing and overlooking", show that those issues were clearly taken into account, but their impact considered not be excessive. It submits that the Committee's conclusions were matters which it was entitled to reach. Miss Wigley accepted that there was no reference to overshadowing of Mr Batey's property, but submitted that these matters were covered in paragraph 6.5, by the reference to the development having the potential for impact on amenity.
30. In Oxton Farms, Samuel Smith Old Brewery (Tadcaster) v Selby District Council v Persimmon Homes (Yorkshire) Limited [1997] EWCA Civ 1440, Pill LJ said in the conclusion to his judgment that:

"It is important that those who make determinations under the planning acts are familiar with sections 70(2) and 54A of the 1990 Act and apply the test imposed by parliament. It follows that a planning officer reporting to and advising council members who are to make a relevant decision must keep the test in mind in the information and advice he provides and in the manner in which he provides it.

Clear mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submission to the council liable to be quashed. The overall fairness of the report, in the context of the statutory test, must be considered.

It has also to be borne in mind that there is usually further opportunity for advice and debate at the relevant council meeting and that the members themselves can be expected to acquire a working knowledge of the statutory test."

Judge LJ agreed with Pill LJ and added this:

"From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgement an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

31. Hence, criticisms of a report by a planning officer will not normally begin to merit consideration by a court unless the report's overall effect is to significantly mislead the committee about material matters which are thereafter left uncorrected before a decision on the planning application in question is taken by the Committee.
32. In the present case, whilst it is quite properly not suggested by Mr O'Reilly that there was any intention on Mr Harding's part to mislead the Committee, his report did not overall, in my judgment, give a fair summary of Mr Batey's objection, and it was significantly misleading in failing to address the issue of the overshadowing of Mr Batey's property. As I have said, this was not due to any intention to mislead on Mr Harding's part, but due to the fact that Mr Harding had only relatively recently stepped into Mr Oliver's shoes. There was, in my view, a disconnect between Mr Oliver's state of knowledge about Mr Batey's property and that of Mr Harding. I do not accept that it was not clear from the report that 2 Tattershall Road was not a residential property, even though this was not expressly stated in it.
33. The question then arises whether the failure to address the issue of overshadowing was corrected subsequently. In my judgment, it was not. I have taken into account, in particular, what Mr Harding says on this aspect in his first and third witness statements, and in his fourth witness statement, where he says he was well aware of Mr Batey's ground floor windows, having visited the site on three occasions prior to the meeting. He says he believes he drew the Committee's attention to those windows. Therefore, it is not clear that Mr Harding did draw the Committee's attention to the windows, but even if he did, drawing attention to the windows themselves does not of itself address the overshadowing issue.
34. Nothing in the slide presentation addressed the issue and it is not enough for the council to say that it was clear that rear ground floor windows existed in Mr Batey's property, which the development would overshadow. Nor is it enough for the Council to rely on what Mr Batey said in his three-minute oral presentation about the lack of light and the loss of privacy. That was insufficient to bring home to the Committee, at what was a late stage in the process, the extent of the overshadowing, in particular in circumstances where it is clear that Mr Batey had had to spend time trying to explain to the Committee what he regarded as inaccuracies in Mr Harding's presentation.
35. In my judgment, the same is true in relation to the questions which Councillor Dorrian put to Mr Batey after his presentation. Miss Wigley referred me, in this regard, to paragraphs 7 and 8 of Councillor Dorrian's statement. Amongst other things, she there states that before Mr Batey stood up she motioned to him to stay where he was and turned to the chairman to explain that she had questions to put to Mr Batey. Many of the points which were then discussed in relation to overlooking and privacy were very similar to those that arose in the Gardeners Walk application. If anything, the concerns were much more acute.
36. In paragraph 8 she says:

"I listened to the presentation and to Mr Batey and felt that by the end I was able to picture the situation."

It may be that Councillor Dorrian was, at the end of questions and answers, able to picture the situation, but it cannot be assumed that this was true of the Committee as a whole, nor can anything be derived from the fact that there was then a debate amongst the Committee members and a tied vote, since in my judgment the extent of the overshadowing was not brought home to the Committee in the first place. Therefore, their discussions and vote took place in the absence of a material consideration having been taken into account. It follows that for that reason the decision must be quashed.

37. Issue 3: was there procedural irregularity? In these circumstances it is unnecessary to consider whether there was a procedural irregularity, but I do so for completeness. Mr Batey submits that there was procedural irregularity in relation to the decision, in that the Committee did not have before it his 2nd January 2007 letter of objection, written in connection with the Trust's previous planning application.
38. The Council denies that there was any procedural irregularity. It accepts that the letter of 2nd January 2007, which simply made a list of points of concern, that included invasion of privacy and light, was not included in the planning application file, but says that the undated letter it received on 26th April 2007 was placed on the file, and that all the points raised in the 2nd January 2007 letter that were relevant, were in fact considered by the Committee: the issue of overlooking privacy was considered in detail (see what I said above); the issue of light was considered following Mr Batey's presentation; the issue of traffic generation was considered in paragraphs 6.6 and 6.7 of the report; and the impact of construction works was raised by Mr Batey at the meeting. The Council accepts that the impact on the value of Mr Batey's property was not considered, but that this was not a material planning consideration. With that I agree.
39. The Council says that Mr Batey was able, in the time available to him, to set out his concerns relating to both overlooking and overshadowing. Regulation 19(1) of the Town and Country Planning (General Development Procedure) Order 1995 (SI 1995/419) provides that the "local planning authority shall, in determining an application for planning permission, take into account any representations made". Mr O'Reilly accepted that a technical and inconsequential breach of those provisions would not justify the quashing of a decision. However, he pointed out that the concerns identified in paragraph 4.1 of the Report, based on the objections received, referred, so far as is material, only to a loss of light to the car body workshop, and not to any loss of such amenity, either to the residential accommodation in general or to Mr Batey's property in particular, or to the issue of overlooking as opposed to overshadowing. He submitted that had the 2nd January 2007 letter been in the planning file, as it should have been, Mr Harding would have been alerted to the need to take measurements of Mr Batey's rear, ground-floor windows which, curiously, was only done by Mr Harding after the Committee had taken its decision to take photos which showed those windows and to explain Mr Batey's concerns in his report and his presentation.
40. Miss Wigley's submissions on this issue are contained in paragraph 17 of her original skeleton argument. I cannot agree with those submissions. For the reasons I have already given, Mr Batey's concerns about overshadowing were not taken into account by the Committee. They were not taken into account, in part in consequence of the omission of the 2nd January 2007 letter from the planning file. In the result, the Committee's decision of 4th July 2007 to grant the Trust planning permission must be quashed.
41. MR O'REILLY: My Lord, I have an application to make for costs. I hope the court has before it a schedule of costs.
42. THE DEPUTY HIGH COURT JUDGE: No, I do not. Have you seen it, Miss Wigley?
43. MISS WIGLEY: My Lord, I have seen it. If it shortcuts matters, we do not dispute the principle or the amount in the schedule.
44. THE DEPUTY HIGH COURT JUDGE: Could I see a copy?
45. MR O'REILLY: Of course, my Lord. (Handed).
46. THE DEPUTY HIGH COURT JUDGE: Yes. So you are asking for the full amount?
47. MR O'REILLY: Yes, my Lord.
48. THE DEPUTY HIGH COURT JUDGE: What concerns me, although Miss Wigley has not adverted to it, is the costs in relation to the amended ground, on which you failed. My own view is that you ought not to be allowed those costs.
49. MR O'REILLY: In which case, my Lord, the proportional costs order. Can I suggest that the vast majority of these costs were incurred in advance of the third ground being raised, on the basis that we did not know about it.
50. THE DEPUTY HIGH COURT JUDGE: I am sure that is right.
51. MR O'REILLY: The costs of today and yesterday would have been incurred in any event.
52. THE DEPUTY HIGH COURT JUDGE: Let me see what Miss Wigley has to say, because it is not a point that she immediately raised, although I could see her nodding in agreement when I took the point. Let us hear from her and then you will have a chance to reply. Miss Wigley, are you taking any point about the amended ground?
53. MISS WIGLEY: I apologise. I was a little hasty. I am not simply being opportunistic. I appreciate that the bulk of the costs will have been incurred prior to the construction of the third ground. From this schedule, it is probably very difficult to separate those costs out. May I suggest that we agree to the principle of costs on the first two grounds -- or the second two grounds on your judgment -- and that there be detailed assessment unless agreed.
54. THE DEPUTY HIGH COURT JUDGE: Unless you can do a bit of horse trading.
55. MR O'REILLY: The simplest equation, in my submission, is that two successes out of three means 66 per cent. However, the majority of the costs, in my submission, would have been incurred in any event. So I am happy with 85 per cent.
56. MISS WIGLEY: What does that amount to in figures?
57. MR O'REILLY: If I could say, that includes the uplift, which is conditioned on the success (inaudible).
58. THE DEPUTY HIGH COURT JUDGE: I did not hear what you said.
59. MR O'REILLY: There was a conditional fee agreement in place after a certain period of time.
60. THE DEPUTY HIGH COURT JUDGE: I see.
61. MR O'REILLY: My Lord, I have the risk assessment, if the court needs to see it. That was predicated on the criterion that the decision would be quashed. I do not know if my learned friend read that.
62. THE DEPUTY HIGH COURT JUDGE: Let me hear Miss Wigley first.
63. MISS WIGLEY: My Lord, I have no submissions to make in relation to the uplift. In the spirit of horse trade, the Council would be willing to agree to £20,000.
64. THE DEPUTY HIGH COURT JUDGE: 85 per cent of the figure you are claiming is £22,600, Mr O'Reilly, very roughly. You are being offered £20,000.
65. MR O'REILLY: Can I just take instructions? (Pause). My Lord, we will go for that.
66. THE DEPUTY HIGH COURT JUDGE: I now have to deal with the question of costs. I am invited to determine those costs summarily. In the light of discussion with counsel, I assess them in the sum of £20,000.
67. MISS WIGLEY: My Lord, I do have an application for permission to appeal.
68. THE DEPUTY HIGH COURT JUDGE: Yes.
69. MISS WIGLEY: I am aware that I to make that today if we are to proceed. My Lord, my application would be on the basis that your Lordship could not reasonably consider that the issue of overshadowing had not been taken into account when, in particular Councillor Dorrian's evidence was that she could picture the situation and that there was nothing to distinguish her from the other councillors. In those circumstances, it was clear that all the councillors were well-informed of the overshadowing issue and how it affected the relationship between the two properties. I seek permission to appeal on that basis.
70. THE DEPUTY HIGH COURT JUDGE: I am going to refuse permission to appeal. I am refusing permission to appeal for mainly two reasons. First, I am satisfied that I have correctly applied the legal tests that are to be applied to this situation, which were not in dispute between parties anyway. Secondly, it does not seem to me to follow from what Councillor Dorrian's perception may have been that therefore, necessarily, all the other councillors must have been of the same view or impression. That is a question of, if anything, factual evaluation, rather than of law, which is not appropriate to go on appeal.
71. Thank you very much.