Neutral Citation Number:  EWCA Civ 144 Case No: C/2000/0517
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH
DIVISION (Mr. Justice Dyson)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 8th February 2001
B e f o r e :
LORD JUSTICE POTTER
LORD JUSTICE SEDLEY
LORD JUSTICE JONATHAN PARKER
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PLYMOUTH CITY AIRPORT LIMITED
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GILBERT W W THOMAS
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SECRETARY OF STATE FOR TRANSPORT,
ENVIRONMENT AND THE REGIONS
Respondent Party Intervening
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr. David Holgate QC (instructed by Foot Anstey Sargent) for the Appellant
Mr. Robert Jay QC (instructed by Richard Buxton) for the Respondent Party Intervening
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J U D G M E N T
As Approved by the Court
Crown Copyright ©
This is the Judgment of the Court:
1. This appeal is brought, with permission granted by Ward LJ, by Plymouth City Airport Limited (PCAL) against the dismissal by Dyson J (as he then was) of its challenge to a certificate issued by the Secretary of State under s.15(2) of the Land Compensation Act 1973 (the Act). The single active respondent, before us as below, has been not the Secretary of State but Mr Thomas, a former local resident whose home, which he has now sold, may have been reduced in value by the works to which the certificate relates. The reason for this unusual state of affairs will be explained shortly.
2. PCAL hold the airport on lease from Plymouth City Council. The Crown, through its armed forces, makes use of the airport. Alterations to accommodate two naval helicopters were for this reason able to be made in 1995 without need of planning permission. Once made, if the alterations fell within s.9 of the Act they rendered PCAL liable under Part I to pay compensation for any qualifying depreciation in the value of neighbouring land. Mr Thomas and others claimed such compensation.
3. In November 1996 the Secretary of State issued his certificate which by s.15(2) establishes conclusively the existence and operative date of qualifying works, leaving remaining issues, if not agreed, to the Lands Tribunal. On the application of PCAL this certificate was quashed by the High Court with the Secretary of State's agreement because of his failure to disclose material which he had taken into account. Having reconsidered the application, the Secretary of State in December 1998 issued a fresh certificate accompanied by a decision letter spelling out his reasons. PCAL moved once more to quash it, serving notice on Mr Thomas under RSC Order 53 rule 5(3) as a person directly affected. Mr Thomas's expectation that he could leave it to the Secretary of State to answer the challenge was thwarted when he learned that the latter was proposing on the advice of leading counsel to concede the case on PCAL's first two grounds. Advised that the certificate was defensible, Mr Thomas took over its defence and succeeded before Dyson J. The Secretary of State has taken no part in the proceedings at either instance, whether to support or to oppose the quashing of his certificate.
4. Although we have been told the Secretary of State's reasons for his stance, they are not reasons of the factual kind which led to the consensual quashing of the first certificate and which a party in Mr Thomas's position would find it difficult to go behind. They include, certainly, a concession that a factor was omitted from consideration, but if Mr Thomas's case is right it was a factor of no legal relevance. For the rest, it is not appropriate to try out issues such as those before the court by reference to the views of a party not before the court. Secretaries of State and their advisers may well have to take into account larger questions than simply whether there is a fighting chance of defending the material decision; and even where that is all they do, they are no more immune from error than when they do decide to resist.
5. Part I of the Act (as amended by the Local Government, Land and Planning Act 1980) makes comprehensive provision for compensation to be paid for depreciation caused by the use of public works, including aerodromes. The principal right is afforded by s.1, but the effect of ss. 3(2) and 4(2) is to limit claims in general to the effect of this use on the first anniversary of its inception. Hence the need for s.9, which starts time running afresh for subsequent alterations and changes of use. In its material parts it provides:
"9. Alterations to public works and changes of use
(1) This section has effect where, whether before, on or after the commencement date-
(a) the carriageway of a highway has been altered after the highway has been open to public traffic;
(b) any public works other than a highway have been reconstructed, extended or otherwise altered after they have been first used; or
(c) there has been a change of use in respect of any public works other than a highway or aerodrome.
(2) If and so far as a claim in respect of the highway or other public works relates to depreciation that would not have been caused but for the alterations or change of use, this Part of this Act shall, subject to subsection (3) below, have effect in relation to the claim as if the relevant date (instead of being the date specified in section 1(9) above) were-
(a) the date on which the highway was first open to public traffic after the completion of the alterations to the carriageway;
(b) the date on which the other public works were first used after completion of the alterations; or
(c) the date of the change of use,
as the case may be.
(3) Subsection (2) above shall not by virtue of any alterations to an aerodrome apply to a claim in respect of physical factors caused by aircraft unless the alterations are runway or apron alterations.
(6) In this section "runway or apron alterations" means-
(a) the construction of a new runway, the major re-alignment of an existing runway or the extension or strengthening of an existing runway; or
(b) a substantial addition to, or alteration of, a taxiway or apron, being an addition or alteration whose purpose or main purpose is the provision of facilities for a greater number of aircraft."
The remaining material provisions are these:
"15 Information for ascertaining relevant date
(2) A certificate by the Secretary of State stating that runway or apron alterations have or have not been carried out at an aerodrome and the date on which an aerodrome at which any such alterations have been carried out was first used after completion of the alterations shall be conclusive evidence of the facts stated.
(3) In this section reference to alterations to the carriageway of a highway, to runway or apron alterations and to change of use shall be construed in the same way as in section 9 above; and subsection (1) above shall not apply unless the date in question falls on or after the commencement date.
(1) Any question of disputed compensation under this Part of this Act shall be referred to and determined by the Lands Tribunal."
6. Until July 1987, runway 06/24 was the airport's main runway, but in that month an improved runway, 13/31, came into use. 06/24 began to be used for parking aircraft. Then in August 1995 the airport accepted the stationing of two Royal Navy helicopters used by the Flag Officer Sea Training Establishment (FOST). These were accommodated on a pad which had been provided by the MoD with a temporary metalled surface (subsequently upgraded) to allow them to park. Landing and take-off were done on and from the runway. The location of the pad had previously been a grassed area on which a flying school parked up to 6 fixed-wing aircraft, and these were relocated within the aerodrome. In January 1997 the two helicopters were moved from the pad to a point near the end of runway 06/24, which remains their home when they are out of their hangars and from which they hover-taxi to and from the main runway for take-off and landing.
7. It has been the contention of Mr Thomas and his neighbours, all of whom say they have been adversely affected by the noise of the helicopters, that the construction of the pad in 1995 constituted an 'apron alteration' entitling them to compensation. In essence their case is that the purpose of the works, which were both relatively and absolutely substantial, judged as it has to be as at August 1995, was to increase the capacity of the airport by two helicopters. One simple and obvious proof of PCAL's purpose, they say, is that without the construction of the hardstanding the helicopters would not - because they probably could not - have come to the airport. Their move to the disused runway in 1997 cannot alter that, even assuming that it was not done (as the judge held it was) in an effort to improve PCAL's opposition to the grant of a certificate.
8. PCAL say that the works were not a 'substantial' addition or alteration. They also say that the works were done principally for safety and environmental reasons to do with the movement of personnel and fixed-wing aircraft, and that they have not increased the capacity of the airport, since the helicopters always could be, and have since 1997 been, housed on a standing which was always available.
9. The Secretary of State accordingly identified two main questions for decision:
(a) whether the MoD helicopter pad was a substantial addition or alteration, and
(b) if it was, whether its purpose or main purpose was the provision of facilities for a greater number of aircraft.
By the conclusion of argument it was common ground that the unit within which the latter test was to be applied was the aerodrome as a whole.
10. On question (b) the Secretary of State wrote:
"6. In our view, one of the factors ... is whether the helicopters would have moved on to the site had the works not been undertaken. If the aircraft would have moved to the airport whether or not the hardstanding was put in place, the work would [viz. will] not have made a difference to the number of aircraft able to use the airport even if the helicopters had arrived after the resurfacing work had been undertaken and then used it. If, however, the work was a prerequisite to the helicopters using the airport, it must be the case that the purpose of the work was to provide facilities for a greater number of aircraft.
7. The correspondence from the MoD is important in determining whether or not the helicopters would or would not have been located at Plymouth had the work not been undertaken. This is partly because it relates to its own intentions and partly because they are independent of the parties. It appears that a hardstanding area was necessary for the helicopters to operate from the airport from the following evidence:
(a) Paragraph 2 of MoD's letter of 26 October 1998: "Both parties therefore agreed that a hardstanding was required for safety reasons (Foreign Object Damage (FOD), passengers walking across uneven ground in cumbersome clothing and dragging FOD into the aircraft)". The fact that the MoD had to build a temporary pan when the airport told them that work on the helicopter area would not begin for another four months also suggests that the helicopters could not function without the work being completed.
(b) Point 2, page 2, of Foot and Bowden's letter of 19 October 1998: "As far as the Airport are aware, a pre-requisite for the operation of the Flag Officer Sea Training (FOST) helicopters had always been on the basis of the provision of a hard standing area" and
(c) Note of Meeting of 25 October 1995 (supplied by Mr Osborne under cover of his letter of 22 October 1998) in which Mr Humphrey, the Airport Director said "although the Police helicopter can land on the grass area, the Dauphin cannot and has to use hardstanding"
8. The current operating area was chosen and MoD provided a temporary surface which was subsequently replaced by a new surface.
9. The Airport's claim that there were other, equally suitable places for the helicopter to use does not appear to be supported. The possible places are runway 06/24 and the four 'designated helicopter areas'."
Of these, it is agreed that only runway 06/24 is in fact relevant. As to it, the letter says:
"10. Whilst the helicopters could have operated from the runway, it appears that this was not considered suitable at the time for 'safety and environmental reasons' (Foot and Bowden's letter of 19 October 1998). This is supported by MoD's letter of 26 October 1998. Also, as MoD point out ... to use the runway would have, in their opinion, reduced the (operating) capacity of the Airport; it follows that part of the purpose of constructing the hardstanding area was to increase the capacity of the airport by allowing helicopters to use the airport in addition to the aircraft using the runway."
11. On question (a), the Secretary of State wrote:
"14. The 1973 Act is silent on the interpretation of the term 'substantial', so it is a question of considering the everyday meaning of the term. Mr Osborne (in his letter of 22 October 1998) refers to the fact that the area covers 0.295 hectares and involved a motorway-style excavator. The Department takes the view that the development was substantial since it was a completely new development within the airport, had an area of 0.295 hectares, involving laying metal plates on a prepared base, was supported by three portable single-storey accommodation units and finally, because the helicopter landing area was used for the frequent landing and taking off of helicopters."
12. In consequence he concluded that the works were 'apron alterations' within s.9 and issued his certificate under s. 15(2).
The respondent's notice
13. It is appropriate to begin by considering the submission of Mr Robert Jay QC for Mr Thomas that the Secretary of State in reaching his decision applied a test too favourable to PCAL. The correct approach, in Mr Jay's submission, is that the purpose of the alterations is independent of the number of aircraft eventually accommodated. The certificate must issue once a s. 9 purpose is ascertained. What use has been made of the alterations and whether it has caused depreciation are then questions for the Lands Tribunal. Mr David Holgate QC for PCAL submits that this is not right: s. 9(2) spells out a 'but for' test which is integral to the certifiable question whether runway or apron alterations as defined in s.9(6)(b) have been carried out, at least to the extent of requiring the Secretary of State to decide whether, but for the alterations, there would have been any increase in the number of aircraft on the airfield.
14. In our judgment Mr Jay is right in principle. Section 9(2) is concerned not with the ascertainment of the purpose of alterations but with the modification of the earlier provisions of Part I for testing claims by reference to the "relevant date" set by s. 1(9). This is not to say, however, that the Secretary of State cannot legitimately answer the question set for him by s. 9(3) and (6), if it is appropriate to do so, by posing the issues in 'but for' terms. It will all depend on the relevant facts. It is in this light that PCAL's grounds of appeal have to be considered.
15. Mr Holgate contends (and the Secretary of State was not disposed to contest) that the Department 'misconstrued' two letters: one from Foot and Bowden, PCAL's solicitors, dated 19 October 1998, and one from the Ministry of Defence dated 26 October 1998. Before turning to these, it is as well to remember that we are dealing here not with legal meaning but simply with the evaluation of information conveyed in writing. The court's task is not to substitute its own reading but to see whether the departmental official who made the decision, Mr Kinsey, placed an impermissible interpretation on them.
16. Foot and Bowden, answering questions put by the Secretary of State, wrote:
"1. Why did FOST not make use of runway 06/24 for their operations in the first place?
[PCAL] required the helicopters to operate from the helicopter pad for safety and environmental reasons... Reference to safety reasons in submissions and earlier correspondence relate to the relocation of the fixed wing aircraft which were originally stationed where the helicopter pad was subsequently constructed so that there was no conflict between fixed wing aircraft and rotary aircraft. The construction of the pad had nothing whatsoever to do with the capacity of the airport.
2.Why did PCAL go to the expense of constructing a special site if as MoD appear to suggest they did not insist on having a hard area for helicopter operations.
As far as the Airport are aware, a pre-requisite for the operations of the FOST helicopters had always been on the basis of the provision of a hardstanding area. PCAL did not construct the helicopter pad and did not bear the expense of so doing. The works were carried out entirely by and at the expense of the MoD."
It will be seen that the second answer negatives the conclusion of the first, since the Act is concerned with the purpose of the alteration irrespective of whose purpose it is. The answers appear to confirm that for the MoD, who 'required' it (this was Foot and Bowden's verb) and constructed it, the purpose of the hardstanding was to accommodate two helicopters which would not - and in the MoD's view could not - otherwise have come there.
17. The MoD's letter on which Mr Holgate relies responds to the same two questions. In answer to the first it says:
"Operating from a runway is a last option. It reduces the capability of the airport (only one landing surface instead of two) and it forces the FOST staff, often dressed in heavyweight rubberised suits to walk across an operating airfield with all the attendant dangers which are even more hazardous at night. Additionally, our normal helicopter activities include rotors running refuel; reload of passengers and starting/stopping engines. At runway 06/24, the aircraft is considerably closer to the residential Tavistock Road than it would be at other locations within PCA."
In answer to the second question it says:
"The original intention was for the helicopters to operate to the main terminal building for passenger drop and pick up. When not in use it was intended that the aircraft would be parked around the vicinity of the Brymon hangar taxying to and from the main dispersal as required. Some two months before operations were due to commence PCA advised MoD that they would not approve the RN/Bond aircraft to Rotors Running Refuel and rotors running passenger embark/disembark in full view of the main airport operations. Both parties therefore agreed that a hardstanding was required for safety reasons (Foreign Object Damage (FOD)), passengers walking across uneven ground in cumbersome clothing and dragging FOD into the aircraft) and PCA identified an open area adjacent to the Bond buildings (current operating area). MoD was assured that the airport would construct a purpose built dispersal but with one month to go before helicopter operations were due to start, PCA advised that work was not likely to commence for approximately 4 months. The MoD therefore completed a temporary pan one day before operations started. This temporary pan was subsequently refurbished on safety grounds with work to lift the tracking and construct a level surface with all necessary drainage in place. The tracking was then re-laid."
18. This letter was not overly helpful to PCAL's case. At PCAL's prompting, as Mr Holgate candidly accepts, the MoD sent a follow-up letter on 27 November 1998:
"In answer to the first of Roger Kinsey's questions Why did FOSF not make use of runway 06/24 for their operation in the first place? I opined that using a runway would reduce the capability of the airport. It now occurs to me that this may or may not be correct in a theoretical and absolute sense but the Plymouth City Airport authorities are, of course, the only ones qualified to advise you on the capacity, capability and operation of the airport. I am therefore sending a copy of this letter to the Chief Executive of Plymouth City Airport. I hope this is helpful."
In the event, and in spite of the reference back to them, PCAL made no further submission to the Department.
19. The decision letter of 15 December 1998 contained the passages set out in paragraph 10 above. Mr Holgate criticises their reasoning as deficient. On a fair reading, he submits, the two letters from Foot and Bowden and the MoD did not state that runway 06/24 was 'not considered suitable at the time for safety and environmental reasons'. PCAL's view had simply been that 06/24 was less suitable than the pads; but, absent the pads, 06/24 would have been suitable. It followed, says Mr Holgate, that the purpose of the pads was not to increase the airport's capacity, since the helicopters would have moved to the airport even if the pads had not been built.
20. Persuasively though it was advanced, we find this contention quite unacceptable. It ignores the elementary fact that a purpose has to exist in someone's mind, and that in this case it was not PCAL but the MoD which decided to construct the pad. The evidence was all one way that the MOD's aim in doing so was to make it possible to locate at the airport two of its own helicopters which for a variety of reasons it did not consider it safe or desirable to locate elsewhere on the aerodrome. There is no basis on which PCAL's purpose in collaborating with the MoD can be differentiated from the MoD's. If a 'but for' test was to be used in this connection by the Secretary of State, it was to the MoD that it had to be applied, and the answer would be the same if the Department asked whether, but for the pads, the MoD would or whether it could have let its helicopters go there.
21. Mr Holgate also criticises the Secretary of State for overlooking a reasoned consent given by Plymouth City Council in its capacity as ground landlord in 1995 to the construction of the pad. It said among other things:
"If consent of some description is not given, the helicopters in support of FOST operations would have to be located on or adjacent to a runway, start engines on the runway and taxi to take-off positions. These manoeuvres would produce a substantially greater environmental impact on resident, particularly those on Tavistock Road."
This, Mr Holgate says, again shows that it was simply a question of preference. But the passage goes on:
"Given that there is no satisfactory alternative to the helicopter operations remaining in their current location, the Council is prepared to give a consent ..."
The consent forms part of a sequence of documents referred to in Foot and Bowden's letter of 19 October 1998, and Mr Jay is entitled to say, as he does, that paragraph 10 of the decision letter is on the face of it a response to the entire sequence. He is also right to say that the consent is too remote from the legal and evidential issues to make it a justiciable error for the Department to have left it out of its expressed reasons. What, if anything, to make of it was entirely for the Secretary of State, and he made nothing of it.
22. In our judgment, as in that of Dyson J, the Secretary of State was fully entitled to conclude, as he did in paragraph 7 of his decision letter, that "a hardstanding area was necessary for the helicopters to operate from the airport" and that this was accordingly the purpose of the alterations. Indeed it would have been surprising if he had concluded that, in the face of all the MoD's carefully explained concerns and objections to the use of runway 06/24, the FOST helicopters would have been located there in 1995 if the pad had not been built. To say that they could have been, if by this is meant a theoretical possibility, is to substitute unreality for reality. To say that they could have been located there in the sense that it was a practical option begs the question: why, then, was the pad constructed? But here on the evidence it is clear that for sound reasons the MoD (and quite possibly Plymouth City Council too) would not have let it happen: the runway was not regarded as a practical option.
23. Mr Holgate next submits that the Secretary of State overlooked a material factor, namely that since January 1997 the FOST helicopters have in fact been using runway 06/24 without reducing the airport's capacity. This too the Secretary of State was prepared to concede. Dyson J accepted that it had been left out of account but held that it was legally irrelevant. He said:
"The Secretary of State was correct in considering the position as it was, and as it was perceived to be, at the time when the works were carried out. He was right to ask why use was not made of the runway 'in the first place', and to express his conclusion on the suitability of the runway on the basis of how it was considered to be 'at the time'..."
24. Mr Holgate submits that the subsequent use of the runway helps to show that it was not in fact unsuitable for such use in 1995. His proposition is capable, in principle, of standing alongside Dyson J's reasoning, at least to the extent of supporting the contention that it was feasible for the runway to be used by helicopters from the start. It does nothing, however, to advance the argument - which in our view is the relevant one - that in the absence of the pad it was a practical option in the mind of the MoD. Nor, factually, does it shed any intelligible light on the statutory question in the present case, which is why the pad was built in the first place. For this reason alone the submission fails. It is not because subsequent events are legally irrelevant: there are many cases where they can throw a flood of light on someone's initial purpose. It is because in the present case, in its factual context, they do not even arguably do so.
It is consequently unnecessary to embark in detail upon the judge's alternative reason for rejecting this submission, namely that there was powerful evidence that the change had simply been made in order to advance PCAL's case against the grant of the Secretary of State's certificate. The evidence for this was sufficient to satisfy Dyson J that had it been seen by the Secretary of State he would have placed no value on the change. Mr Holgate has argued that the evidence did not meet the standard set out by this court in Simplex GE (Holdings) v Secretary of State for the Environment (1988) 57 P & CR 306, namely that the Secretary of State, faced with it, would necessarily have reached the same conclusion. He submitted that the apparent motive did not exclude the possibility that the use of the runway since 1997 was relevant to the original purpose, and that this argument was now fortified by correspondence which, though known to the Secretary of State, was not before Dyson J. Because we consider the position to be that which is set out in paragraph 24 above, we think it unnecessary to consider in detail the further correspondence to which we have been referred. Suffice it to say that in our view the evidence is such that it might well have enabled Mr Thomas (as Dyson J held it did) to meet the Simplex test.
26. This ground is really part of Ground 1. It is that the omission from the decision letter of any reference to the MoD's "corrective" letter of 27 November 1998 demonstrates the omission from consideration of a highly material factor. The letter, it will be recalled, offered to resile from the proposition that using the runway would have reduced the capacity of the airport, but made it clear that it was PCAL alone who could say whether this was so. PCAL, to whom a copy of the letter went, said nothing more to the Department about it. Dyson J held, and we agree, that in the absence of any further submission it was reasonable for the Secretary of State to conclude that the initial proposition was correct. Moreover, if Mr Holgate is right in his critique of this conclusion - viz that the point had in fact been dealt with in PCAL's earlier letters to the Department - it would follow that it was not overlooked at all.
27. Dyson J's alternative ground for rejecting this head of argument was that the omission, if there was one, was immaterial because the Secretary of State's finding that the works were required for safety and environmental reasons was sufficient in itself for his conclusion. This is not, as Mr Holgate suggests it is, a Simplex finding. It goes back to the statutory question, which is why the pad was constructed. As to this, as Mr Jay points out, the MoD's original letter of 26 October 1998 gave a knowledgeable and compelling set of reasons which PCAL has never controverted.
28. This ground relates to the other limb of s. 9(6)(b), the question of substantiality which was addressed in paragraph 14 of the decision letter. Mr Holgate submits that the decision erroneously considers substantiality in an absolute, but not in a relative, sense. Mr Jay accepts, correctly, that "a substantial addition to, or alteration of, a taxiway or apron" necessarily involves consideration of what was previously there; but he argues, first, that the Secretary of State was clearly aware of this and, secondly, that the practical difference between the two things, when one recalls that the pad covered 0.295 hectares, is imperceptible.
29. Mr Holgate is quite right to point out that paragraph 14 of the decision letter (see paragraph 11 above) describes the intrinsic features of the development and its use without matching them against the facilities of the airport as a whole. For his part Mr Jay points out that the paragraph is captioned "Substantial addition or alteration". In it the Secretary of State correctly directs himself that the word "substantial" is not a term of art but an everyday word. For our part we would be content to decide this point on the short ground that, whether it is viewed relatively or absolutely, the development described by the Secretary of State was on the face of it substantial. If the Secretary of State were to have decided otherwise it would have required a convincing explanation. For the present, it is unnecessary to decide whether a development such as this one could cease to be substantial if undertaken at, say, Heathrow. There is clearly a difference between the relationship of a development to what was previously present on its immediate site and its relationship to the aerodrome as a whole. The relativity envisaged by s. 9(6)(b) may very well relate to the former only.
For completeness we should mention the reference in the decision letter to "a motorway-style excavator". It came from a resident's letter and before Dyson J was the subject of a natural justice challenge on the ground that what had been used was in fact an ordinary JCB. The distinction, in our view, can have made no difference to the outcome.
31. Accordingly this appeal fails and is dismissed.
Order: Appeal dismissed, summary assessment of costs £39,300 leave to appeal to the House of Lords dismissed.
(This order does not form part of approved judgment)