Royal Life Insurance Ltd v Secretary of State for the Environment and another

Compulsory purchase — Confirmation of compulsory purchase order — Whether the Secretary of State failed properly or at all to address a question of the viability of the scheme underlying the compulsory purchase identified by inspector — Whether second respondent acquiring authority entitled to costs Pursuant to section 142 of the Local Government, Planning and Land Act 1980 the second respondents, Bristol Development Corporation, made a compulsory purchase order in respect of 11.5 ha of land in the Bristol urban development area — The order land included 4 ha belonging to the applicant — At an inquiry held by an inspector appointed by the first respondent, the Secretary of State for the Environment, the applicant argued that the development proposed by the second respondents was based on an unrealistic assessment of office-floorspace take-up, was not financially viable in itself and in consequence of that non-viability was positively detrimental to the aim of regeneration of the development area — The second respondents had called evidence showing that it was neither relevant nor appropriate for detailed evidence on viability to be put forward at the inquiry because of the prematurity of detailed assessment, the confidentiality of the order land’s valuation and the sensitivity of continuing negotiations with potential development partners — In concluding that the proposals were soundly based, the inspector in his report made the caveat that the second respondents had not demonstrated their viability, but he accepted that a responsible body would not pursue a proposal unless the viability had been demonstrated to their satisfaction — In seeking to quash the confirmed compulsory purchase order under section 23 of the Acquisition of Land Act 1981, it was contended for the applicant that the first respondent did not have evidence before him and failed to properly or at all address the question of viability raised by the caveat in the inspector’s report and that an order should only be confirmed if the public interest decisively so demands Held: The application was dismissed — Although the applicant’s evidence related to part of the scheme, the inspector had evidence before him relating to the whole scheme — Financial viability is only one of many factors, including the merits of rival schemes, when considering whether regeneration is on balance more likely to be achieved by the compulsory purchase — The inspector’s process of reasoning, that despite the caveat the scheme was soundly based, was unimpeached — The first respondent discharged his task of seeing that the second respondents acted responsibly and in the public interest; he was under no obligation to analyse viability and therefore did not wrongly delegate that analysis to the second respondents The following cases are referred to in this report. Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320; [1965] 3 All ER 371; (1965) 63 LGR 400; [1965] EGD 216; 195 EG 205, CA de Rothschild v Secretary of State for Transport (1988) 57 P&CR 330; [1989] 1 EGLR 19; [1989] 06 EG 123, CA Green v Secretaries of State for the Environment and Transport (1984) 271 EG 550, [1984] 2 EGLR 27 Leser Landau v Secretary of State for the Environment Unreported, June 4 1991 Migdal Investments Ltd v Secretary of State for the Environment [1976] EGD 112; (1976) 240 EG 793, [1976] 2 EGLR 15 Prest v Secretary of State for Wales (1982) 81 LGR 193; [1983] EGD 282; 266 EG 527, [1983] 1 EGLR 17, CA Sovmots Investments Ltd v Secretary of State for the Environment [1977] QB 411; [1976] 3 WLR 597; [1976] 3 All ER 720; (1976) 74 LGR 556, CA This was an application by Royal Life Insurance Ltd under section 23 of the Acquisition of Land Act 1981 to quash part of the Bristol Development Corporation (Temple Meads/Kingsley Village Part I) Compulsory Purchase Order 1990 made by the second respondents, Bristol Development Corporation, and confirmed by the first respondent, the Secretary of State for the Environment. Brian Ash QC and Paul Stinchcombe (instructed by Linklaters & Paines) appeared for the applicant; Robert Carnwath QC and Alun Alesbury (instructed by the Treasury Solicitor) represented the first respondent; John Taylor QC and Robert Fookes (instructed by Lawrence Tucketts, of Bristol) represented the second defendants. Giving judgment, ROSE J said: By its amended notice of motion the applicant seeks under section 23 of the Acquisition of Land Act 1981 the quashing of that part of the Bristol Development Corporation (Temple Meads/Kingsley Village Part I) Compulsory Purchase Order 1990 which relates to land which it owns, namely plots 10 and 11 of the order lands. The essence of the challenge can be shortly stated. Mr Ash QC, for the applicant, submits that the first respondent failed properly, or at all, to address the question of viability raised by way of way of caveat in his inspector’s report. The background is as follows. The second respondents, Bristol Development Corporation, are a statutory body established under section 136 of the Local Government Planning and Land Act 1980 to secure regeneration of the Bristol urban development area. Pursuant to section 142 of the 1980 Act and Parts I and II of the Acquisition of Land Act, the second respondents made the compulsory purchase order in respect of 11.5 ha of land in the Bristol urban development area south-east of the city centre. The applicant’s land, plots 10 and 11, is shown on the plan to the south-west of the floating harbour and it amounts to some 4 ha (that is about one-third of the total order lands). Statutory objections to the compulsory purchase order were made by the applicant and others and these were considered by an inspector appointed by the first respondent at a local planning inquiry held between the end of January and March 20 1991. The inspector reported to the first respondent in July 1991. The first respondent confirmed the compulsory purchase order by letter dated January 28 1992. A notice of confirmation of the compulsory purchase order was published on February 12 1992. The order lands are the first land to be the subject of phased development by the second respondent in their intended regeneration of the Bristol urban development area, which involves the provision of, among other things, 93,000 msu2 of office space and further areas amounting to over 30,000 msu2 of space devoted to other commercial, cultural and residential uses. At the local inquiry the applicant argued that the development intended by the second respondents was based on an unrealistic assessment of office-floorspace take-up, was not financially viable in itself and in consequence of that non-viability was positively detrimental to the aim of regeneration. The applicant, together with Temple Mead Development Ltd, called expert evidence in support of the viability objection based on studies by two chartered surveyors, Mr Gary Halman [ARICS] and Mr Peter Benjamin [FRICS]. In his proof of evidence Mr Benjamin concluded that the second respondents’ scheme would make a loss of £45m and was non-viable. The second respondents’ case on viability was that this was a judgmental matter not capable of proof and that it was neither relevant nor appropriate for detailed evidence on viability to be put forward at the inquiry because of the prematurity of detailed assessment, the confidentiality of order lands’ valuation and the sensitivity of continuing negotiations with potential development partners. Mr Brian Raggett [ARICS], a partner in Hillier Parker, gave expert evidence along these lines and in relation to other matters on behalf of the second respondents. He had been appointed in February 1990 and had rigorously appraised the evolving proposals that eventually formed phase 1. In the light of his expertise and evidence the second respondents were fully satisfied that a viable scheme had been devised. The inspector’s report fully sets out the evidence which he heard and the competing contentions advanced in argument before him. His findings of fact with regard to viability are as follows: 34. The Framework proposals have been tested for financial viability, but because of the need for commercial confidentiality BDC are unwilling to release the figures. 35. BDC dispute the statements by TMDL and Royal Insurance that the Framework proposals are not viable. 36. BDC are in discussion with 3 potential development partners about implementation of the Framework. 37. Royal Insurance contend that the Framework proposals are financially unviable to the extent of some £45m for that part of the Order Lands south of the Floating Harbour. 38. TMDL contend that Framework proposals are financially unviable to the extent of £38m for that part of the Order Lands south of the Floating Harbour. Before turning to the inspector’s conclusions, it is convenient to set out the relevant statutory provisions in relation to the second respondents and the material parts of Circular 23/88 — Compulsory Purchase Orders by Urban Development Corporations — to which the inspector referred in some detail. Section 136(1) of the Local Government, Planning and Land Act 1980 provides: (1)  The object of an urban development corporation shall be to secure the regeneration of its area. (2)  The object is to be achieved in particular by the following means (or by such of them as seem to the corporation to be appropriate in the case of its area), namely, by bringing land and buildings into effective use, encouraging the development of existing and new industry and commerce, creating an attractive environment and ensuring that housing and social facilities are available to encourage people to live and work in the area. Section 142(1) provides: An urban development corporation may acquire (by agreement or, on being authorised to do so by the Secretary of State, compulsorily) — (a) land in the urban development area; (b) land adjacent to the area which the corporation requires for purposes connected with the discharge of the corporation’s functions in the area; (c)  land, whether or not in or adjacent to the area, which the corporation requires for the provision of services in connection with the discharge of the corporation’s functions in the area. Circular 23/88 relates to compulsory purchase orders by urban development corporations. Para 1 states: It is intended that in general the procedural guidance set out in DOE Circular 6/85 should apply to section 142 orders. Para 5 says: UDC’s compulsory purchase powers are expressed in wide and general terms, reflecting both the national importance of the task of urban regeneration and the practical problems of ensuring that wide areas of severe urban dereliction can be speedily returned to beneficial use. Para 6 I shall read in full: In reaching a decision on whether to confirm a section 142 order, the Secretary of State will have in mind the statutory objectives of the UDC and will, inter alia, wish to consider: (i)  whether the UDC has demonstrated that the land is in need of regeneration; (ii)  what alternative proposals (if any) have been put forward by the owners of the land or other persons for regeneration; (iii)  whether regeneration is on balance more likely to be achieved if the land is acquired by the UDC; (iv)  the recent history and state of the land; (v)  whether the land is in an area for which the UDC has a comprehensive regeneration scheme; (vi)  the quality and timescale of both the UDC’s regenerations proposals and any alternative proposals. Para 7 states: The Secretary of State recognises that in the special circumstances in which UDCs operate, and given their specific duty to regenerate their areas, it will not always be possible or desirable for them to have specific proposals for the land concerned beyond their general framework for the regeneration of the area, and that therefore the detailed land use planning and other factors will not necessarily have been resolved before making a CPO. Para 11 says: Where a UDC does not advance detailed proposals for redevelopment, the Secretary of State will, however, expect the Corporation to have prepared a broad framework for regeneration of the area. This should be summarised in the statement of reasons which the Corporation is required to include in its order submission. UDC’s will be expected to demonstrate the case for acquisition in the context of their development strategy, and present the relevant evidence at a public inquiry where appropriate. It is to be noted that neither the statute nor the circular refers to viability. The inspector concludes that the need for regeneration has been demonstrated and that the second respondents clearly have a comprehensive regeneration scheme for the order lands and beyond. He goes on to consider factors (ii), (iii) and (vi) of para 6 of the circular. In relation to the objector’s alternative proposals he says at para 24.5: I believe that such a pattern of redevelopment would be physically possible, and I see no reason to doubt that it would be commercially viable. His conclusions as to the viability of the second respondents’ proposals appear at paras 24.8, 24.9 and 24.10, which I shall read in full: 24.8  The Development Corporation’s argument that viability goes to implementation not acquisition is not one that I can wholly accept. It is clear that consideration needs to be given to the balance of advantage of Development Corporation’s proposals as against alternative proposals in achieving regeneration of the Order Lands. This necessitates some consideration of viability, since that which is not viable is unlikely to be implemented and hence cannot achieve regeneration. 24.9  The Development Corporation repeatedly asserted that the Framework proposals had been rigorously tested for viability and been found satisfactory. However they declined for reasons of commercial confidentiality to produce any figures. No development partner currently exists to implement their proposals, although discussions were stated to be proceeding. By contrast, both Royal and TMDL produced some figures to support their views that the proposals were not viable. However, neither had carried out a full study of the proposals as currently existing, although both stated that nothing that had become known during the course of the inquiry would cause them to radically revise their assessment. 24.10  I am, therefore, obliged to record that the Development Corporation did not demonstrate the viability of their proposals, although they asserted it repeatedly and with some force. In the final analysis, I can do no other than accept that, as a responsible public body, the Development Corporation would not pursue a proposal the viability of which had not been demonstrated to their satisfaction. Certainly, they have sought the advice of reputable and experienced consultants in this field, who appeared at the inquiry to give evidence on their behalf. I cannot, however, reach a more positive conclusion on this point. The inspector’s overall conclusion appears at para 24.26. It is: Having considered these and all other aspects I see no reason to doubt that the Framework proposals are soundly based and will lead to regeneration of the Order Lands. The only caveat I find it necessary to make is in respect of financial viability (see 24.10 above). As to the alternative proposals the inspector says: 24.34  . . . In my judgment what would result on the Triangle site would be a series of disjointed and poorly related developments that would fail to achieve the potential of this important site, to provide satisfactory pedestrian routes from the station to the city centre, and to open up the Floating Harbour to public use. Such a proposal would achieve redevelopment, in the sense of putting buildings on land, but would not constitute regeneration in the wider sense. Certainly it would not constitute ‘something splendid’, and I have some hopes that the Framework proposals, as realised, might just achieve that end. 24.35  Regeneration beyond the Order Lands would be unlikely to occur as a result of the alternative proposals. 24.36  I must now deal with Great Western Way — that relates to plot 11 — Its retention is, I consider, one of the main reasons why TMDL’s illustrative proposals are unsatisfactory. For example, it frustrates attempts to bring the Floating Harbour and the station buildings into a mutually beneficial relationship with the Triangle site. I must conclude that if the regeneration of the Order Lands is to be fully achieved, then Great Western Way must go. 24.38  I conclude, therefore, that the Development Framework proposals would secure regeneration of the Order Lands, and that the alternative proposals are materially unsatisfactory for the reasons I have given. 24.39 Having regard to all these matters and to the reasons for the setting up of an Urban Development in the first instance, I conclude that a compelling case in the public interest has been made for confirmation of the Compulsory Purchase Order, with one exception. The inspector goes on to deal with the exception which is immaterial for present purposes and his recommendation at para 25.40 is: I recommend that the Bristol Development Corporation (Temple Meads/Kingsley Village part 1) Compulsory Purchase Order 1990 be confirmed — subject to the exception to which I have referred. The crucial part of the first respondent’s decision letter is para 6, which reads as follows: After careful consideration of all the material before him, the Secretary of State accepts the Inspector’s findings of fact and wholly agrees with his conclusions and recommendation. In considering this Order the Secretary of State has had regard to the advice contained in DOE Circular 23/88 and in particular to the considerations set out in paragraph 6(i) to 6(vi) of that Circular. He is satisfied that with the exception of Plot 24, the land included in the modified Order is required so that the regeneration of the Order land may be secured. He accepts that the alternative proposals for redevelopment of the Order lands summarised in paragraph 24.4 of the Inspector’s report would be feasible, commercially viable and, in part, capable of early implementation. However, he agrees with the Inspector’s conclusion that the alternative redevelopment proposals would not achieve the comprehensive regeneration envisaged by the Development Framework adopted by the Development Corporation in accordance with its objective to secure the regeneration of its area. The Secretary of State is further satisfied that the Development Corporation have demonstrated that they are, so far as is practicable, taking steps to assist in the relocation of persons and businesses whose interests would be required as a result of the Order. The Secretary of State has accordingly decided to confirm the order subject to the modifications shown on it . . . Mr Ash QC, on behalf of the applicant, submits, and indeed it is common ground, that the compulsory purchase order can be quashed if the Secretary of State, in the words of Lord Denning in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320 at p 1326F: . . . has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. Mr Ash also relies on passages in the judgments of Lord Denning and Watkins LJ in Prest v Secretary of State for Wales (1982) 81 LGR 193*. At p 198 Lord Denning said: I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressly authorised by Parliament and the public interest decisively so demands: and then only on the condition that proper compensation is paid: see Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508. If there is any reasonable doubt on the matter, the balance must be resolved in the favour of the citizen. This principle was well applied by Forbes J in Brown v Secretary of State for the Environment (1978) 40 P&CR 285, where there were alternative sites available to the local authority, including one owned by them. He said, at p 291: ‘It seems to me that there is a very long and respectable tradition for the view that an authority that seeks to dispossess a citizen of this land must do so by showing that it is necessary . . .’ *Editor’s note: Also reported at [1982] 266 EG 527, [1983] 1 EGLR 17. At p 211 Watkins LJ said: In the sphere of compulsory land acquisition, the onus of showing that a compulsory purchase order has been properly confirmed rests squarely on the acquiring authority and, if he seeks to support his own decision, on the Secretary of State. The taking of a person’s land against his will is a serious invasion of his proprietary rights. The use of statutory authority for the destruction of those rights requires to be most carefully scrutinised. The Court of Appeal’s decision in de Rothschild v Secretary of State for Transport (1988) 57 P&CR 330†  Mr Ash describes as ‘the low point’ of the court’s approach to compulsory purchase orders. In that case the Court of Appeal rejected the submission made by Mr Ash and his then leader that special rules apply to challenges to compulsory purchase orders. Slade LJ, in a judgment with which the other members of the court agreed, at p 336 said: Having considered the judgments of this court in Prest and of Forbes J in Brown, I conclude that both of them were merely examples of challenges to the Secretary of State’s decision on conventional Wednesbury/Ashbridge grounds. Though all the judgments in Prest contained observations regarding onus, I, for my part, read them as doing no more than giving a warning that in cases where a compulsory purchase order is under challenge, the draconian nature of the order will itself render it more vulnerable to successful challenge on Wednesbury/Ashbridge grounds unless sufficient reasons are adduced affirmatively to justify it on its merits. † Editor’s note: Also reported at [1989] 1 EGLR 19. On p 337 Slade LJ said: First, I do not accept that any special rules beyond the ordinary Wednesbury/Ashbridge rules fall to be applied when the court is considering a challenge to the Secretary of State’s confirmation of a compulsory purchase order. Secondly, however, the Secretary of State, as Mr Laws on his behalf accepted and submitted, must be satisfied that the compulsory purchase order is justified on its merits before he can properly confirm it. He must not exercise his powers capriciously. Given the obvious importance and value to land owners of their property rights, the abrogation of those rights in the exercise of his discretionary power to confirm a compulsory purchase order would, in the absence of what he perceived to be a sufficient justification on the merits, be a course which surely no reasonable Secretary of State would take. I think that this approach to the matter reconciles the judgments in Prest with the ordinary principles of our law applicable to claims for judicial review. Furthermore, it has the merit of avoiding any reference to onus of proof, which is an expression more appropriate, as Mr Laws pointed out, to a lis inter partes. Mr Ash accepts in the light of that decision that no special rules apply, but he submits that a special approach is appropriate to a compulsory purchase order in that it should only be confirmed if the public interest decisively so demands and that is a phrase which appears in the judgment of Slade LJ at p 343. It is not in issue before me that I must be guided by the Court of Appeal’s approach in de Rothschild. From this standpoint Mr Ash submits, first, that the Secretary of State failed to consider the applicant’s principal objection, namely that the second respondent’s proposals were not commercially viable and therefore not likely to cause regeneration. The inspector at para 24.8 recognised ‘that which is not viable is unlikely to be implemented and hence cannot achieve regeneration’, and the caveat which he entered at 24.26 should, submits Mr Ash, have caused the first respondent to examine viability. There was, submits Mr Ash, assertion by the second respondent but no evidence on which the Secretary of State could reasonably conclude that the second respondents’ scheme was viable. Therefore, whether the matter is considered ‘on the merits’ in accordance with de Rothschild, or on the basis that the public interest ‘decisively demands’ compulsory purchase in accordance with Prest and de Rothschild there is no proper basis on which the Secretary of State could confirm the order. The inspector failed to make any finding as to the viability of the second respondents’ proposals and concluded merely that viability was shown to the second respondents’ satisfaction. The inspector, submits Mr Ash, was by his caveat recommending confirmation, provided the Secretary of State was satisfied as to viability and it was not possible for the Secretary of State to accept the inspector’s recommendation without first concluding that the scheme was viable. Mr Ash further submits that it was not open to the first respondent to delegate assessment of viability to the second respondents, which is the effect of his decision. Mr Ash relies on a passage at p 357 of Wade’s Administrative Law 6th ed. It is indeed common ground that a power could only lawfully be exercised by the authority on whom it is conferred. Mr Ash accepts that the reasons ground advanced in the notice of motion adds nothing material to his argument. For the first respondent, Mr Carnwath submits, as to no evidence, in reliance on Migdal Investments Ltd v Secretary of State for the Environment (1976) 240 EG 793, [1976] 2 EGLR 15 that ‘no evidence’ means ‘no evidence’. Here Mr Raggett’s expert evidence for the second respondents was before the inspector. It was not the ipse dixit of the second respondents themselves and the inspector was entitled to rely on it. Mr Benjamin’s evidence on behalf of the applicant is open to criticism: first, that it dealt with only part of the scheme, namely that south of the Floating Harbour whereas Mr Raggett’s evidence looked at the whole scheme; and, second, as Mr Taylor for the second respondents points out, that it was based on an old block plan in relation to a different area of office footage (690,000 sq ft rather than 1 m sq ft). This justified the inspector in what amounted to the positive conclusion at para 24.10 that he accepted Mr Raggett’s evidence. I accept these submissions. It follows that Mr Ash’s lack of evidence argument fails. The crucial question however remains as to whether, in the light of the inspector’s caveat on viability, it was open to the Secretary of State to confirm the compulsory purchase order without further analysing viability. Mr Carnwath submits that the fact that the Secretary of State has to have regard to viability does not mean that he has to subject it to detailed analysis. When cost is relevant its weight is for the minister: see per Forbes J in Sovmots Investments Ltd v Secretary of State for the Environment [1977] QB 411 at p 422 cited by Glidewell J in Green v Secretaries of State for the Environment and Transport (1984) 271 EG 550, [1984] 2 EGLR 27. Mr Carnwath relies on the Green case where it was held that in confirming a compulsory purchase order the Secretary of State was entitled not to take financial viability into account if he took the view that it was immaterial in the light of the advantages of the scheme and the public interest. In the present case the Secretary of State, submits Mr Carnwath, wholly agreed with the inspector in his formulation of the issues, his views of the issue merits and demerits, notwithstanding the caveat, and his overall conclusion that the second respondents’ scheme would secure regeneration which the alternative proposals would not and that (para 24.39): ‘. . . a compelling case in the public interest had been made for confirmation’. Neither the statute nor the circular refers to viability. Indeed Mr Carnwath submits some schemes may not be financially viable in an ordinary commercial sense. Financial viability is merely one of many factors, including the merits of rival schemes, which may be relevant when considering whether regeneration is on balance more likely to be achieved if the land is acquired by the urban development corporation. I accept Mr Carnwath’s submissions, supported as they are by Mr Taylor QC. In my judgment the inspector’s approach to viability culminating in his caveat amounts to this: viability is a factor to be considered because regeneration is unlikely if a scheme is not viable (para 24.8); it was not shown by the objector’s evidence that the second respondents’ scheme was not viable or by the second respondents’ evidence that the scheme was viable (para 24.9); although the second respondents on reputable advice were satisfied as to its viability, a question mark existed over viability, expressed by the caveat (para 24.10); despite that question mark, the second respondents’ scheme was soundly based and would lead to regeneration (para 24.26), which the alternative proposals would not (para 24.38); a compelling case for confirmation of the compulsory purchase order in the public interest had therefore been made out (para 24.39). It seems to me that that process of reasoning, and the Secretary of State’s adoption of it, is unimpeached by Mr Ash’s central challenge. So far as delegation is concerned, Mr Ash’s argument is doomed to fail in view of my conclusion on his primary submission that viability was no more than one of many factors for consideration when assessing likelihood of regeneration. The second respondents’ satisfaction as to viability does not, in my view, represent a delegation by the Secretary of State of any function properly his. His task as confirming authority was to see that the second respondents’ acted responsibly and in the public interest and this duty he discharged. He was, in my judgment, under no obligation to analyse viability and it cannot therefore be said that he wrongly delegated that analysis to the second respondents. Accordingly, despite Mr Ash’s attractive submissions this challenge fails and is dismissed. Following an application for costs on behalf of the second respondents, ROSE J continued: The second respondents seek an order for their costs against the unsuccessful applicants. Curiously this is the most difficult aspect of this case which I have had to decide. On the one hand it is common ground that a practice has developed in recent years of awarding two lots of costs where the second respondents are a developer. Equally there is a practice, it is common ground, of not awarding two sets of costs where the second respondents are a local authority. Clearly an urban development corporation are in some respects akin to a developer and in some respects akin to a local authority. They are by virtue of section 135, a creature of the Secretary of State, but also there may be circumstances in which they have wholly independent interests to pursue, which cannot be pursued by the Secretary of State. The only decision brought to my attention in relation to the costs of an urban development corporation is that of Auld J in Leser Landau v Secretary of State for the Environment (unreported, June 4 1991), where he reached the conclusion that two orders for costs should be made. As Mr Ash points out, it does not appear that section 135, in so far as it takes the matter very far, was brought to the attention of Auld J. The way in which Mr Taylor first puts the matter is that the second respondents have a special interest in pursuing the urgency of the matter. It does not seem to me that that is a matter which is on analysis separate from the Secretary of State’s interest in the matter. The second aspect to which he draws attention is that by reason of the arguments and ruling which I gave yesterday at the outset of this matter the original notice of motion was defective in form and in fact it had to be amended and was amended with my leave at the behest of Mr Ash. Thus Mr Taylor submits there was an additional reason for the second respondents to be present. The difficulty with that argument is that the second respondents failed on the jurisdictional challenge which, no amendment having at that stage been sought by the applicant, they sought to launch. There was, prior to the hearing before me, correspondence between the first respondent and the applicants, of which the second respondents were in ignorance before this case was called on. That matter does not seem to me to advance the second respondents’ case in relation to costs having regard to the fact, as I have said, that their jurisdictional challenge, unsupported by the first respondent failed. It does not seem to me that advances the second respondents’ case or that they had any separate interest to pursue. Accordingly, in my judgment, the justice of this case will be met if the applicant pay the first respondent’s costs, but it does not have to pay the second respondents’ costs.