Neutral Citation Number:  EWHC 1401 (Admin)
IN THE HIGH COURT OF JUSTICE CO/3384/2001
QUEEN'S BENCH DIVISION
(THE ADMINISTRATIVE COURT)
Royal Courts of Justice
Friday 28th June 2002
B e f o r e:
MR JUSTICE BURTON
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THE QUEEN ON THE APPLICATION OF MURRAY
HAMPSHIRE COUNTY COUNCIL
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(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
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Official Shorthand Writers to the Court)
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MR W UPTON (instructed by RICHARD BUXTON, 40 CLARENDON ST, CAMBRIDGE, CB1 1JX) appeared on behalf of the Claimant.
MR T HOWARD (instructed by HAMPSHIRE COUNTY COUNCIL LEGAL DEPARTMENT, THE CASTLE, WINCHESTER, HAMPSHIRE SO23 8UJ) appeared on behalf of the Defendant.
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P R E L I M I N A R Y J U D G M E N T
(As approved by the Court)
MR JUSTICE BURTON: This hearing before me today is the hearing of an application by way of judicial review in respect of the decision of the Hampshire County Council on 9th July 2001, approving details submitted under, among other things, condition (v) of a planning permission, being Phrase II of Winchester Park & Ride at Bar End Road, Winchester, granted by the Secretary of State on 21st October 1998. Application for permission in respect of this was refused on paper by Collins J, but, the application having been renewed, it was granted on limited grounds by Ouseley J. I say limited, because he restricted the application effectively to what might be said to be four grounds, which I will summarise in a moment, while positively refusing permission, as did Collins J, in respect of an issue relating to an environmental assessment, which he took the view was covered by the decision of the Court of Appeal in R on the application of Diane Parker v London Borough of Bromley (unreported) 23rd November 2001.
2. A number of interlocutory matters arose at the outset before me this morning. The first was an attempt by Mr Upton, on behalf of the claimant, to resuscitate the EIA point, in respect of which permission has been previously refused as I indicated. Although I was not entirely satisfied that I had jurisdiction to consider the grant of permission to apply for judicial review, in respect of a matter which had been refused twice before by two of my fellow judges, I nevertheless considered that application, but refused it on the grounds that I was satisfied that I would decide the matter against Mr Upton and that his application was hopeless on the basis of the present decided law. Even though there is apparently provisional leave granted by the House of Lords, that very provisional leave is contested and even if in the end they were to grant leave it would be unlikely to come on for a year, and, unless and until that occurs, the law of the land is the decision of Court of Appeal, and it would be inappropriate for this case to be held up by any such decision, given the importance of planning applications, particularly where the objection to the planning application is by a third party, not otherwise involved in the application itself, but affected by it.
3. That left the next interlocutory matter which was canvassed before me. This related to the effect of matters that have occurred since July 2001. Those matters arose in the following way. First of all, it was said by Mr Upton that matters had been discovered by his client which had not been fully previously appreciated, and which caused the formulation of two additional grounds of challenge by way of judicial review. I heard the nature of that. I was, for reasons that I will expand upon in a moment, not satisfied that in fact either of the two points amounted to fresh grounds, as opposed to an elaboration of an existing ground or, in fact, that they arose out of matters that could be said to be newly discovered, rather than matters which had been known or at any rate in the public domain, prior to the July 2001 meeting. So, while sceptical at this stage as to whether I would be likely to grant permission to amend the judicial review claim form in that regard, I adjourned such application to the end of the hearing on the basis that all matters would be heard under reserve, which I think is the proper translation of the Latin which we are not allowed to use, de bene esse.
4. I should then at this stage summarise the nature of the case that is made against the Hampshire County Council. What is said is as follows. First, that the Hampshire County Council, when making a decision on 9th July 2001 to approve a case that condition (v), to which I have referred, in relation to mitigation land, was fulfilled by the selection of land called Magdalen Hill, were acting irrationally, or not taking into account matters they should have taken into account, by failing to consider an order of preference which had been indicated through the Secretary of State by the Inspector in the decision letter and the notice of the decision. In this pecking order, if I can put it like that, Magdalen Hill was not the first of the five sites which were concluded to be appropriate for mitigation land in substitution for the land which was being lost as a result of the development that was permitted by the Secretary of State.
5. The second ground again related to the appropriateness of the selection of the mitigation land in question, and that was that the Hampshire County Council had again acted irrationally or failed to take into account a relevant consideration, namely with regard to public accessibility of the site chosen.
6. The third case was that there was no, or, I suppose, in so far as this is a permissible claim in judicial review, no adequate, consideration of the environmental equivalence of the mitigation land to the land at Bar End that was being lost, and/or that the Hampshire County Council had not used the correct date for assessment, if there was to be an assessment, of such environmental equivalence.
7. To those three grounds Mr Upton sought to add two linked grounds, to which I have just referred, by way of amendment, namely that it was discovered that the land at Magdalen Hill had been purchased prior to the hearing on 9th July 2001 upon the authorisation of the Committee, namely the Asset Management Subcommittee, which authorised the approval of condition (v) in relation to that land on 9th July 2001; and the case that Mr Upton sought to put by way of amendment was that in fact there had been, prior to 9th July, thus a predetermined decision, leaving no open mind on 9th July, and/or some kind of bias on the part of the Committee, which was held out as being impartial.
8. As I have indicated, it seemed to me both that those matters may well have arisen out of information which was in the public domain prior to 9th July, and in any event that, even if otherwise arguable, such grounds were only factual developments of the case that there was no adequate consideration given to the three grounds which, in any event, were in time and for which permission was given.
9. The other matter which arose by way of interlocutory application relating to what has occurred since July 2001 is that which forms the basis now of my judgment. On 29th May 2002 the defendant Council approved a management plan in respect of the mitigation land, authorised pursuant to the July 2001 resolution to which I have referred, at Magdalen Hill. Application for approval of that management plan was made on 29th April 2002. If that application and consequent approval was in time, and I shall return in a moment to what that means, Mr Upton accepted that, by the approval of the plan in question, two further grounds, which he would otherwise have had permission to pursue before me, fell.
10. Those two grounds are very much interlinked, as will be obvious in a moment when I describe them. They are very loosely that there was uncertainty about the approval of July 2001, as to the precise description of the land and/or its boundaries, and that there was an inadequate or no management plan. He accepts that those two complaints were adequately resolved by what occurred on 29th May, when approval was given to a specified site, on the basis of a detailed management plan, but his submission is that the 29th May approval was out of time. If he is right about that then his two grounds, to which I have just referred, stand alongside his other three to be resolved on this application, subject to a further argument on discretion, which has been raised today by Mr Howard, on behalf of the defendant Council. If he is wrong about that then the two grounds fall away, and the only matters that would, subject to his application for amendment to which I have already referred, remain alive are the three grounds of order of preference, public accessibility and environmental equivalence.
11. It seemed it me quite plain, therefore, that this issue is an issue which should be decided as preliminary point in this application, and both counsel happily agreed to that course.
12. The issue therefore on which I am giving judgment is whether the application of 29th April 2002, and the approval pursuant to that application on 29th May 2002, were in time. This has revolved around consideration of sections 91 and 92 of the Town and Country Planning Act 1990 and the Town and Country Planning (General Development Procedure) Order 1995.
13. The condition in question is contained in the decision letter of the Secretary of State in paragraph 19. Paragraph 19 contains 12 conditions for the grant of the permission and I shall simply read out two of them.
19. In all the circumstances the Secretary of State considers that the proposals for an extension to the park and ride at Bar End Winchester should be allowed. Accordingly, for the reasons given by the Inspector and in this letter, the Secretary of State grants outline planning permission for an extension to the park and ride at Bar End, Winchester, in accordance with applications...subject to the following conditions:
(ii) Plans and particulars showing the detailed proposals for all the following aspects of the development shall be submitted to and approved by the local planning authority in writing before the development commences.
(a) The siting, layout, appearance and materials of the amenity building;
(b) Pedestrian links across the site;
(c) The provision to be made for boundary treatment, lighting, closed circuit television, bus stops and street furniture;
(d) Drainage arrangements.
Development should not take place except in accordance with these details.
(v) [this is condition (v) to which I have referred]. No development shall take place until there has been submitted to and approved by the local planning authority a scheme for the provision and management of alternative grassland (in mitigation for the 2.66 hectares which will be lost as a result of implementation of the permission hereby granted) on one of the sites marked 3, 4, 7, 8 or 11 [Magdalen Hill is site 7] on Plan 1 attached to Inquiry Document H3. The scheme shall be implemented as so approved."
I summarise the dispute between the parties in this way: if that condition, for which subsequent approval was needed, condition (v), was a 'reserved matter', then it was out of time, because an application for approval of a reserved matter must, as I shall indicate in a moment, be made within three years of the grant of the outline planning permission. In this case outline planning permission was granted on 21st October 1998 and, as I have indicated, no application for approval under condition (v) was made until 29th April 2002.
15. If, however, it was not a 'reserved matter' and Mr Howard were right, then there is no such three-year time limit, but the outline planning consent is governed by the fall-back provisions of section 91 of the Town and Country Planning Act 1990, which imposes a five-year limitation within which planning consent must be performed, and no limitation on the time within which approval must be applied for or given.
16. I turn then to the relevant sections. Section 91 of the 1990 Act reads as follows:
91(1) Subject to the provisions of this section, every planning permission granted or deemed to be granted shall be granted or, as the case may be, be deemed to be granted, subject to the condition that the development to which it relates must be begun not later than the expiration of-
(a) five years beginning with the date on which the permission is granted or, as the case may be, deemed to be granted; or
(b) such other period (whether longer or shorter) beginning with that date as the authority concerned with the terms of planning permission may direct."
In this case there was an express period, which happens to be the very five years provided by the statute.
18. By section 91(4) it is provided:
Nothing in this section applies-
(g) to any outline planning permission, as defined by section 92."
Section 92 reads as follows:
(1) In this section and section 91 "outline planning permission" means planning permission granted, in accordance with the provisions of a development order, with the reservation for subsequent approval by the local planning authority or the Secretary of State of matters not particularised in the application ("reserved matters").
(2) Subject to the following provisions of this section, where outline planning permission is granted for development consisting in or including the carrying out of building or other operations, it shall be granted subject to conditions to the effect-
(a) that, in the case of any reserved matter, application for approval must be made not later than the expiration of the three years beginning with the date of the grant of outline permission; and
(b) that the development to which the permission relates must be begun not later than-
(i) the expiration of five years from the date of the grant of outline planning permission; or
(ii) if later, the expiration of two years from the final approval of the reserved matters or, in the case of approval on different dates, the final approval of the last such matter to be approved.
(3) If outline planning permission is granted without the conditions required by subsection (2), it shall be deemed to have been granted subject to those conditions."
As is apparent in section 92(1), there is a reference to the provisions of a development order. "Development order" is defined within the 1990 Act by cross-reference to section 336, which itself cross-references to section 59. But it is common ground between the parties that the only extant development order, albeit that there are a number of historical orders some of which may well have had continuing effect when the Act was passed in 1990, is now the Town and Country Planning (General Development Procedure) Order 1995 SI 1995 No. 419 (the "Development Order").
21. In that Order there is an express definition of the words "reserved matters" under Article 1(2) of the Order which reads as follows:
Reserved matters" in relation to an outline planning permission, or an application for such permission, means any of the following matters in respect of which details have not been given in the application, namely-
(c) external appearance,
(d) means of access,
(e) the landscaping of the site;"
It can be immediately seen that that definition is exclusive. It is not a definition which includes other matters, but it is a definition which specifically restricts the words "reserved matters" to those five examples.
23. I was shown an earlier case which recited within it the Order which was extant in the 1980s, and the equivalent words in that order were identical, save that, instead of the word "namely", the words were "and which concern". So the definition at that stage too was exclusive and not inclusive.
24. Thus a condition in an outline planning permission providing for subsequent approval of drainage or density or, as in this case, the provision of mitigation or substituted land, is not a 'reserved matter' for the purposes of the Development Order and as defined by that Order.
25. One then turns to Article 2(1) of that Order which says:
2(1) This Order applies to all land in England and Wales, but where land is the subject of a special development order, whether made before or after the commencement of this Order, this Order shall apply to that land only to such extent and subject to such modifications as may be specified in the special development order."
Then in Article 3 the following is provided:
3(1) Where an application is made to the local planning authority for outline planning permission, the authority may grant permission subject to a condition specifying reserved matters for the authority's subsequent approval."
There has been some litigation, it appears, as to whether an authority can grant permission subject to approvals other than in respect of the specified reserved matters, and that, for example, seems to have formed the basis of the case to which I referred earlier, namely a Scottish case Inverclyde District Council v Inverkip Building Co. Ltd 1982 S.L.T. 401. But there appears, surprisingly, notwithstanding the researches of both counsel, to have been no authority on the point to be decided before me, namely the meaning of the word "reserved matters" for the purposes of section 92, with a view to seeing whether the time limits provided by section 92 apply to the approval in question.
28. Mr Upton has invited me to construe section 92 in support of his case. His submission is that the words "reserved matters" are defined by section 92 as meaning matters not particularised in the application reserved for subsequent approval by the local planning authority. If he is right as to that then any matters which are, as he puts it, by reference to section 92, 'reserved for subsequent approval', are themselves reserved matters, and attract the time limit of section 92(2)(a), namely that any application for approval of them must be made within three years.
29. Mr Howard, however, submits that section 92 only applies in respect of reserved matters which are reserved matters as defined by the development order, thus, as I have recited earlier, only approvals relating to siting, design, external appearance, means of access and landscaping. Thus approval in respect of, for example, drainage, to which I have referred already, is not a reserved matter within the meaning of the order, but not also, and for that reason, a reserved matter within the meaning of section 92 and thus not governed by the time limits of section 92. The consequence of his submission is not thus that there is no time limit in respect of approval, which might be thought to be the consequence if section 92 is not applicable, but that the general time limit of five years for performance of the development pursuant to the consent applied by section 91 applies to such a case, and is not ousted by section 92 as a result of section 91(4)(g).
30. Section 92 is not felicitously phrased. If Mr Howard were to have the benefit of a section which positively said 'reserved matters as defined by the Town and Country Planning (General Development Procedure) Order 1995 or any successor order', or something of that kind, his argument would have plain sailing. Equally, Mr Upton would be much better off if the section provided or included no reference to the development order at all.
31. I am entirely satisfied that the reference to "a development order" does mean the Development Order, but was providing for the possibility that there would be others, although at the moment there are not.
32. As I have indicated earlier, it seems to me surprising that this matter has never reached any court for decision. There must surely be other cases in which it is alleged that a time limit has been missed by an applicant for planning permission and in respect of the obtaining of a relevant approval, and the answer has been given: 'It is not a reserved matter, it is an approval which is governed by the generality of section 91'. There must indeed be cases, as Mr Howard has submitted to me, in which there are outline planning permission which are subject to the need for outstanding approvals, none of which would fall within the definition of reserved matters within the Order because all matters relating, for example, to design have been approved at the outline planning stage and all matters outstanding relate, for example, to drainage or density. But equally there will be no doubt many circumstances such as there are here, in which in relation to outstanding approvals some fall within the definition of the Order and some do not.
33. It seems to me that the Order is the governing provision in the operation of planning in England and Wales. The planning authorities are entitled to operate their procedures by reference to the Order and it is to the Order to which parties will look for the purpose of reckoning time limits and the grant of approvals. It is in those circumstances I am satisfied the fact that the Order governs, when one considers the question of the section.
34. If the consequence of excluding these approvals from section 92 were to leave them in limbo, then that would be a solid argument against Mr Howard's contention, as I have earlier indicated, but that is not the case. I am satisfied that section 92 contains the reference to the development order because it is intended that outline planning permission and its accoutrements will be defined by reference to the Development Order, and that in those circumstances the reference to reserved matters in section 92(1) is a reference to reserved matters as defined by the Order.
35. In those circumstances an outline planning permission which contains reserved matters is governed by section 92 so far as it concerns those reserved matters. In so far as there are approvals which are not reserved matters within the definition of the Order, they are not governed by the time limit of section 92, but by the time limit of section 91 because the Order is the governing provision. Therefore the words "in accordance with the provisions of a development order" should be read as including, or indeed the same as, the words "subject to the provisions of the Development Order". And that is my conclusion in relation to this issue. Consequently, I find that the application for approval on 29th April, which led to the approval being given on 29th May in respect of reserved matters, as defined by the order, was not out of time.
36. In those circumstances, I resolve the preliminary point in favour of the defendant, which means that I do not need to consider his fall-back argument on discretion, to which I briefly referred, and that the only outstanding matters now left in this application, subject to the outstanding, but adjourned, application to amend, are the three issues to which I have referred, namely order of preference, accessibility and ecological equipments.
37. That brings me to the practical question, Mr Upton, as to how we are to deal with this at 3.05pm on a Friday. I do not know whether you had come to any conclusion, but I spoke to the listing office and the listing office's preference is that you should be given greater flexibility by having the opportunity of going before a fresh judge.
38. MR UPTON: My Lord, I am grateful for that indication because, of course, the one advantage of you having dealt with this as a preliminary point is that you have not had to be addressed on the----
39. MR JUSTICE BURTON: Yes, the only matter that would arise -- there is nothing, subject to your view, to rule me out of being that fresh judge. There would be however if we started now and that is really what I am raising with you. If we started now, for the next hour and a half then, of course, it would be necessary for me to finish it and that would create a trammel on your opportunity of getting on quickly. I certainly cannot sit next week. I could only sit I think the first three days of the following week etc. But, of course, I am not at all promising that you will get on in front of anybody in this term. I have discovered that Richards J is sitting in the first two weeks of August and Sullivan J is sitting in the last week of August. Both of whom are familiar with the area and I would be perfectly happy to certify that this was fit for vacation business if that was your preference. But I do not know whether you have any thoughts.
40. MR UPTON: Can I just briefly take instructions?
41. MR JUSTICE BURTON: Yes, of course.
42. MR HOWARD: If I may use the time. We had a preference for you to continue simply because you had heard at least part of the details. Having said that, logistically, I do appreciate the difficulties that it may cause.
43. MR JUSTICE BURTON: I have to say to an extent the reason why I incorporated into my judgment, which I am quite happy to have an expedited transcript of and approved, was so that in case it was not I who dealt with the rest of the case I would at least indicate my views with regard to the amendment, although, of course, I have no views with regard to the three matters which have not even begun to be argued before me.
44. MR UPTON: My Lord, I am grateful for your intimations and I think that is the appropriate way forward. One advantage of course of not launching straight in is that we can then review what is the relevant material and of course save the relevant points----
45. MR JUSTICE BURTON: Well, I had that in mind, that if we are not going to go ahead today I would like to discuss with you -- well, we will come to that immediately if that is the decision. It seemed to me that if we are down to three points we can slim the bundle. For example, we would not need to look at the plans, not that I did. You need not have them before the judge; and if we are only on the issues of the order of preference, accessibility and environmental equivalence then I would have thought you would actually massively slim down the bundle, although you would obviously need to have certain documents in full, the letter and the meetings in question and such like, but you could very much slim down the documents so that it is only the documents to which reference would need to be made with regard to the outstanding three issues, plus possibly the extra two, for the next hearing.
46. MR UPTON: I think, my Lord, that would be helpful. There is just one other issue, before perhaps we come on to the directions for the further disposal of the case, which would be what is the appropriate way forward if one wishes to appeal against your judgment.
47. MR JUSTICE BURTON: Yes.
48. MR UPTON: Obviously this is an important point in which there is not any extant authority and when I did address you this morning about the possibility of raising new points you were understandably unsure of the extent of your jurisdiction. And I am, therefore, unsure whether I should be asking you for leave to appeal on this ruling now, or whether one should be leaving this to the final disposal of this stage of the hearing before the High Court and deal with the appeal as one issue. It does go back to this point that we did address this morning as to which is the appropriate forum for raising issues such as this or indeed then wishing to appeal against----
49. MR JUSTICE BURTON: Well, let us split them up because if you are indicating the question of an appeal on this fairly short point I shall obviously hear Mr Howard but that might well be a different matter. If you are also seeking to appeal my refusal of allowing you to reopen something that has been dealt with by two of my brother judges already and the Court of Appeal, I am not minded to grant leave, both because I think it is a hopeless argument and because I think that it is a discretionary one, because I did actually allow for the possibility of my having jurisdiction and then refused as a matter of discretion. But I do not think that the Court of Appeal would be interested in that point. But that must be a matter for you. But you are asking, are you, for leave to appeal on both aspects?
50. MR UPTON: Although I only do it in this way because if one is appealing on one, then it made sense to address you on both.
51. MR JUSTICE BURTON: Well, it may or it may not make sense. Let us just think this through because I am not saying I give leave on the preliminary point, but I am anxious about time here, because clearly this is a planning case, it is important. If you were to fix up a date, for example, in front of one of the judges that I mentioned, which I would have thought could be listed for half a day if you have slimmed the bundles down as I indicated, and knowing who the judge was going to be, then that would give you a terminus ante quem for going to the Court of Appeal for a final conclusion of this matter. They could do that, on the basis of resolving your remaining three grounds, maybe even before the end of term, although I think it is unlikely.
52. Now if you were to win on those three grounds you would not need to bother with the preliminary point.
53. MR UPTON: No.
54. MR JUSTICE BURTON: Interesting it may be or not. If, however, I granted leave or you sought leave, or whatever, in relation to this preliminary issue, in the hope of winning and then being able to run your extra two grounds, you will lose your date in August (a) because I think the Court of Appeal, however short it is, will not be likely to be able to fix you in this term, but even if they could, if you were to win, you will not get your case on in August, because it will suddenly expand again beyond the half day which it otherwise would be, because the whole issue would be wider. So I am just trying to see where we go.
55. What I could do, if this is acceptable, is I could adjourn your application for permission to appeal on the preliminary issue and perhaps your application for permission to appeal on the other, although I think that would be very generous of me if I did, until after you have resolved these three points. If you win on these three points, or any of them, you do not need this. If you lose then you might want to go to the Court of Appeal on everything, I suppose.
56. MR UPTON: Could I just briefly take instructions? As I have indicated the point is whether or not one is looking to get this on immediately, even on the truncated basis that you have suggested, and can I just quickly have a word?
57. MR JUSTICE BURTON: Yes.
58. MR UPTON: Thank you. My Lord, thank you. I think the way you suggested of adjourning my application, whether I then pursue it obviously is a matter which would arise before the next judge.
59. MR JUSTICE BURTON: Oh yes, because you positively need to make the application for me to extend your time because otherwise your four weeks runs from today.
60. MR UPTON: Well, indeed, my Lord.
61. MR JUSTICE BURTON: What could be done is it does not need perhaps even to come back to me. I could adjourn the application for permission to appeal to the judge, it may or may not be me, to the judge hearing the substantive application, who could then decide whether to give permission to appeal en bloc if you have lost and, if you have won, permission to cross-appeal if the defendants want to appeal.
62. MR UPTON: That would therefore be my application to then adjourn my application for leave, sorry for permission to appeal and can I, therefore, at this stage leave it open so it would be both of those issues that would be adjourned.
63. MR JUSTICE BURTON: Yes. So you are seeking then that we discuss today procedures, but we do not start the substantive application today.
64. MR UPTON: Yes.
65. MR JUSTICE BURTON: But that is adjourned off to be tried at a date to be fixed, certified to be vacation business, so if you can get it on this term, good luck to you, but if you cannot you will certainly get it on in August. And that I adjourn your application for permission to appeal in respect of both my refusal to hear the EIA argument and my resolution of the preliminary point, to be decided at the hearing of the substantive application. Is that right?
66. MR UPTON: Yes, my Lord.
67. MR JUSTICE BURTON: Now what do you say, Mr Howard?
68. MR HOWARD: To a great extent it was in line with my own thoughts. I was racking my brain as I was sitting trying to think how to keep the case moving because I am sure you have in mind that the Council, and I am sure the claimants and those other concerned objectors, are very keen to see this matter resolved and not bogged down. It came to mind some form of extending the time without giving any succour to my learned friend's applications, but some way of extending that time and your Lordship's suggestion of the adjournment seems to gel in with that. Again, my Lord, adjourning the application to a date to be fixed, the substantive application, certified for vacation business in the circumstances and, albeit that we expressed a preference for your Lordship to sit, it may be the quickest way.
69. MR JUSTICE BURTON: Well, you would have an hour of me this afternoon and then you would be lumbered with me, so to speak, whereas even if it comes back in front of me we have only lost an hour. We could not possibly finish this today.
70. MR HOWARD: I have to be realistic.
71. MR JUSTICE BURTON: And I cannot be sure that if, by getting an hour of me you would necessarily make it more likely that you would get on than less, and, in any event, I suspect it will be quicker if you come on in front of Sullivan J or Richards J with a slimmed down bundle.
72. MR HOWARD: Of course, my Lord, not wishing to change counsel, this would give the opportunity, if there were difficulties with dates, potentially, for new personnel. I am not suggesting----
73. MR JUSTICE BURTON: But a possibility.
74. MR HOWARD: If there were difficulties.
75. MR JUSTICE BURTON: Yes.
76. MR HOWARD: So, my Lord, simply speaking out aloud it seems----
77. MR JUSTICE BURTON: I do not know how the first two weeks of August vis-a-vis Richards J appeals to either party, but certainly he is very familiar with this Act.
78. MR HOWARD: I appreciate that, my Lord.
79. MR JUSTICE BURTON: I mean, first two weeks of August does that seem a sensible time? I am not going to fix it now, but I suggest that your solicitors might like to go straight around, armed with your dates, this afternoon to the listing office.
80. Now how are we going to deal with slimming it down? You will obviously want to get an expedited transcript which I am happy to order. For the rest of it, it does seem sensible, does it not, to have fresh skeletons which pluck out the preliminary point and therefore pluck out the certainty point and the existence of the scheme point, and which just concentrate on the case relating to the three surviving grounds and refer to the documents, and then a very much slimmed down bundle. And then including in your skeleton, obviously, Mr Upton, your application for an amendment with relevant documents illustrating it with regard to your fourth and fifth grounds, in so far as you decide to pursue them as separate grounds, as opposed to subsuming them within the first ground.
81. I think you ought to make a decision in that regard quite soon so that Mr Howard will know what he has to face, because, of course, issues like when it was all in the public domain will be irrelevant, because if you are only using the information to support your first ground that because you made up your mind already, you therefore did not give proper consideration, you do not need to have a separate ground. But if you are relying on them as separate grounds then of course that kind of issue would need to be prepared for by Mr Howard.
82. MR UPTON: I am grateful, my Lord. It sounds as if one is looking at almost a sequential approach.
83. MR JUSTICE BURTON: Yes.
84. MR UPTON: I am not sure how long a revised transcript would take but it sounds like my revised skeleton would be the first step, followed by the defendant's skeleton, followed by an agreed bundle.
85. MR JUSTICE BURTON: Well, quite honestly, you know what is in the revised transcript. None of it came as a surprise to you, apart from the result, and, therefore, I do not think you need to wait until you get it. I was more anxious that the revised transcript be available for the judge than for you two, although obviously it will be useful for you two. So that I would not have thought that we should wait for that. Now what time scale? It is now the beginning of July, end of June. 14 days for a fresh skeleton?
86. MR UPTON: I would have thought 14 days and then seven days for a response.
87. MR JUSTICE BURTON: Is that all right? It looks to me as though what you should be going for in that case is to grasp your half day in front of Richards J and then you know exactly where you are with skeletons and with the skeletons -- well, no, I would have thought, what are we doing about bundles? I am going to direct that you agree between the two of you a slimmed-down bundle of documents and, of course, a slimmed-down bundle of authorities, given that not all of them will now be needed. When would that be by?
88. MR UPTON: Depending on whether it is either the beginning or end of August, it seems as if we ought to do it by the end of July.
89. MR JUSTICE BURTON: Yes. What I suggest you do, let us say not less than three days prior to the fixed date that you agree to file a new slimmed-down set of agreed bundles. Is that all right? So we will say 14 days from today for claimant's revised skeleton, including any revised amended claim form, if that is what you decide, and seven days thereafter for defendant's revised skeleton and then three working days prior to the fixed date, the lodging of an agreed slimmed-down set of bundles.
90. MR UPTON: The only remaining matter, I think, is can I formally ask for permission to put in the witness statement of Mr Story?
91. MR JUSTICE BURTON: Yes.
92. MR UPTON: It may in the light of this be redundant, but since he did produce it overnight and it was in response to matters that came into the court arena.
93. MR JUSTICE BURTON: Yes, well it may not be redundant because it may deal with this ecological equivalence point which is still live. Yes, is that all right? Have you seen it?
94. MR HOWARD: Very briefly, my lord, what is sauce for the goose is sauce for the gander I suspect, my Lord, and we have submitted our documents late.
95. MR JUSTICE BURTON: Yes. Well, I give blanket permission for you to put in your two witness statements from Mr Dalby and you to put in your witness statement from Mr Story. I adjourn -- no, I do not adjourn, I extend the time for you to make an application for permission to appeal against my orders today until the hearing of the adjourned application. Is that all right?
96. MR UPTON: I am grateful, my Lord.
97. MR JUSTICE BURTON: And I suppose the question of costs arises.
98. MR UPTON: I am sure both of us would say, at the moment, it should be costs in the case.
99. MR JUSTICE BURTON: Well, I do not know.
100. MR UPTON: Would you invite us to address your Lordship on the point?
101. MR JUSTICE BURTON: Yes. I suppose it may be simple, one can just reserve them rather than making them in the case. You have made an application -- well, you were driven by me in the end to make an application for a preliminary issue which you lost, well you did not lose the application, you lost the preliminary issue. You would want to say that the only reason you made the application is because of late developments by the defendants. On the other hand, you could have conceded the point once those late developments occurred, but you chose to argue it and lost it.
102. MR UPTON: And presumably, my Lord, it then also had an important affect on how I was then going to proceed with the case on the grounds then available.
103. MR JUSTICE BURTON: Yes, and in any event we would not have finished today. It may be the sensible course, while very much remembering that you have made an application today or an application has been made by you today which has been lost which may well be reflected in costs, the best course might be to reserve the costs to the adjourned application. Is that all right, Mr Howard?
104. MR HOWARD: Yes, my Lord.
105. MR JUSTICE BURTON: Very good. Well then while making that indication that the learned judge will inevitably want to appreciate the fact that you lost the application today, but that is not necessarily decisive of the costs today, I shall reserve the costs. Anything else?
106. MR HOWARD: I do not think there is anything else. Thank you, my Lord.
107. MR UPTON: No.
108. MR JUSTICE BURTON: Thank you.
109. MR HOWARD: Thank you very much indeed.
110. MR JUSTICE BURTON: Thank you both for your help.