Held, application refused. (1) It was not unlawful for a public body to enter into a binding settlement agreement and it was entitled, legitimately, to do so in the exercise of its statutory powers and duties. There was also no reason in principle why a minister or a public body ought not to agree with an opposing party to commit to taking certain steps, as part of a settlement agreement, in the exercise of their public functions even where those steps differed from the relief originally sought. The authorities addressing Tomlin orders further indicated that the scheduled settlement agreement might extend beyond the pleaded case and could give rise to new obligations. Such agreements were enforceable on application to the court, and did not require a fresh claim to be commenced. Although Tomlin orders were less common in public law claims than in private law claims, they were not unknown and CPR 40.6(3)(b)(ii) did not exclude judicial review claims under CPR Pt 54. While there were clearly differences between a contract claim and a public law claim, the court had a discretion in deciding whether to approve the making of a Tomlin order and whether to enforce it at a later date, which would allow it to take into account the public law context and prevent inappropriate orders from being made or enforced. In the present case, it was relevant that the consent order was correctly characterised as being akin to a Tomlin order, had been entered into voluntarily and had been approved by an experienced High Court judge with knowledge of the case, who had been satisfied that the order was appropriate in the present case. While some of the terms of the agreement set out in the schedule were too vague and general to be enforced, the agreement that the results of the respondents‘ evaluation of sites “will be set out as soon as reasonably practicable in the Diffuse Water Pollution Plans …. as appropriate for each site, as amended from time to time” was sufficiently clear and specific to be enforced (paras 33, 35–37, 40).

(2) It being well established that a public authority was entitled to have regard to the cost to the public purse of a particular course of action, the question of resources might be relevant not only where a “reasonably practicable” requirement was contained in a statutory duty and the question was the lawfulness of a public body’s actions, but also where such a requirement was enshrined in a court order. The resource constraints of the respondents were therefore a factor to which they were entitled to have regard when complying with their obligation under the schedule to the consent order to set out their evaluations “as soon as reasonably practicable”. Had the respondents decided to withhold all funds from the diffuse water pollution plan programme and to take no steps to tackle diffuse pollution the court might well have concluded that the respondents had not complied with the “as soon as reasonably practicable” requirement, but that was not what had happened here. In circumstances where the respondents had had to make difficult choices between competing demands for funding and staff resources, in an overall programme which had also been delayed by a number of different factors, they had complied with the obligation in the schedule to the consent order. Given that the evidence also indicated the respondents intended to use their best endeavours to continue to comply with the schedule, the application was to be dismissed (paras 42–44, 47, 69–71, 72).