Neutral Citation Number:  EWHC 3782 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Tuesday, 16 October 2012
B e f o r e:
HIS HONOUR JUDGE MACKIE QC
(SITTING AS A JUDGE OF THE HIGH COURT)
THE QUEEN ON THE APPLICATION OF ANNE WORTLEY
GLOUCESTERSHIRE COUNTY COUNCIL
GRUNDON WASTE MANAGEMENT
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MRS A GRAHAM PAUL (instructed by Messrs Richard Buxton) appeared on behalf of the Claimant
Mr Peter Wadsley (instructed by Gloucestershire County Council) appeared on behalf of the Defendant
Mr Richard Phillips QC and Mr Mark Westmoreland (instructed by Messrs Blake Lapthorn) appeared on behalf of the Interested Party
J U D G M E N T
(As Approved by the Court)
1. THE JUDGE: This is an application by Mrs Anne Wortley, and effectively on behalf of members of her community, seeking permission for judicial review in order to quash a planning permission granted by Gloucestershire County Council on 11 November 2011. The application is brought on five grounds, plus another one which is sought to be added. This planning permission was granted to the interested party, Grundon Waste Management, for the purposes of mineral extraction and waste infill at Wingmore Farm, Bishop's Cleeve, Cheltenham.
2. The application for permission was refused by Judge Alice Robinson on 20 March 2012 and this is the renewal of the application.
3. I have had the benefit of able submissions and formidable skeleton arguments, running legitimately to some length, from counsel for the three parties: Ms Graham Paul for the claimant, Mr Wadsley for the authority and from Mr Phillips QC and Mr Westmoreland Smith for the interested party.
4. The background to the application is broadly as follows. Wingmore Farm is currently an integrated waste management facility located about half a kilometre to the west of Bishop's Cleeve, 2 kilometres east of Stoke Orchard and 2.5 kilometres to the north of Cheltenham, about 16 kilometres from Gloucester. The site has access from two roads, which pass from A roads through Stoke Orchard to Bishop's Cleeve. The site extends to some 79 hectares and is within the Cheltenham and Gloucester green land. The surrounding area is in agricultural use, but there are well established residential areas in Stoke Orchard to the West, Bishop's Cleeve to the northeast and Brockhampton to the south.
5. The application for planning consent to permit the interested party to resume operations on a site which it should have restored by early 2009 attracted a lot of attention and local opposition for reasons helpfully encapsulated in a paragraph from the claimant's counsel's argument. She says:
"The community of Bishop's Cleeve have endured over 20 years of adverse environmental effects from Grundon waste operations at Wingmore Farm. The 1989 permission which permitted waste deposition, required activities to cease and the site to be restored to agriculture by May 2009. That was to be the end of the activities on site and an end to the adverse effects for the local community."
The site was not restored. The grievance of the objectors is this. In circumstances where the site should have been restored to agriculture by the interested party by May 2009, what does the Council think it is doing by giving them an additional 20 years of activity as a reward for failing to comply with the planning consent.
6. It is important to stress that planning applications are considered by local councillors democratically elected, not by judges. Councillors have knowledge and experience and they are elected by the people they serve. The purpose of judicial review is not to decide whether the Council reached the right result or even a wise result. That is beside the point. All that this court is concerned with is whether or not it is arguable that the Council acted in breach of the law.
7. Much of this application focuses on the officers' report. It is important to bear in mind the guidance of the law about how the courts deal with criticisms of officers' reports. The approach is set out in Oxten Farms, where the Court of Appeal held that an application for a judicial review based on criticisms of an officer's report would not normally begin to merit consideration unless the overall effect of the officer's report significantly misleads members about material matters which are thereafter left uncorrected at the meeting of the committee. There were highly pertinent observations from Pill and Judge LJJ, as he then was, which I bear in mind, but do not articulate on this application for permission.
8. When therefore I consider parts of the officers' report, it is vital to consider them in the context of the rest of this very detailed document.
9. What are the grounds of review? Well, first, it is contended that there was a failure by the Council to take into account the correct classification of the site as greenfield site. The claimant says that it should have been classified in the report as greenfield and, because it was not, consequences have followed. Secondly, it is contended that the Council took into account an immaterial consideration about the existing ground conditions at the site, that is to say the fact that work was still going on at it. The third ground is a claim that there was unlawful consideration of the application as a continuation of an existing permission. Fourthly, it is contended there was a failure to enable members properly to assess conflicting scientific data. Fifthly, it is contended that the decision was not in accordance with the Town and Country Planning (Environmental Impact Assessment) Regulations of 2011.
10. I turn to the submissions of counsel about the first three claims.
11. Ms Graham Paul argues that this is a planning permission for mineral extraction and waste importation with all the associated adverse health effects for local residents, and, against the background that she sets out, she contends that it was important that proper regard be had to what she describes as the baseline condition of the site; that is its status. She says the baseline condition should not always be judged as it actually is in physical terms. If there are good policy reasons, the notional condition of the land should be the reference point. She says that the baseline for the purpose of PPS3 should have been greenfield land.
12. She says that annexe B of Planning Policy Statement 3 requires the site to be characterised as greenfield, notwithstanding the fact that its restoration is incomplete and its existing ground condition is nothing like greenfield. She says that the classification of the site in accordance with national planning policy is capable in any given case of being a material planning consideration to which the decision maker must have regard Sward, the group led, in this litigation, by Mrs Wortley, informed the planning permission that the baseline should be considered as greenfield. The officers correctly informed the Committee that the previous permission had expired before the current application was made but they did not inform the planning committee that they should treat the site as greenfield.
13. Counsel relies on the fact that the officer's report described Sward's submissions and those of others that the site was greenfield and should be treated as such, but said that this was an unrealistic assumption because of the physical state of the site at the current time.
14. She submits that the proper classification of the site in accordance with national planning policy is a material planning consideration in every case. She also submits that the perceived lack of alternatives to granting the permission sought overlooked the option of enforcement of the 1989 permission and its restoration conditions. The site would have been greenfield if those conditions had been complied with.
15. Counsel submits that the members were not advised, as they should have been, that the site should effectively be treated as greenfield and therefore the advice was significantly misleading in that it described what is now accepted to be the correct classification of the site in accordance with the planning policy as an unrealistic assumption.
16. A number of the assumptions underpinning those submissions are disputed, although with differences of emphasis, by the defendant and by the interested party.
17. Mr Wadsley for the Council says that it was obvious that the previous planning permission had expired on 12 May and the members were told this. The members were also told of the submission by Sward and Friends of the Earth that the application should be regarded as a new development on a greenfield site. Members could have been in no doubt that there was no planning permission in force on the site and had not been since 12 May 2009 or that there were operations continuing on the site and the applicant sought to continue those until June 2030, when the site would be fully restored.
18. Counsel submits that members were told that this issue of greenfield should not be given any significant weight and that was right because the approach of the applicants is misconceived. The reliance placed on greenfield is undermined by the very cases of Capel and Bosson which are relied upon. The officers pointed out that the site was in existence and operating and could not left as it was and that the choices were between a number of options for dealing with the site which were examined in detail. These included a do nothing option and the minimum engineered option, both of which involved the early closing of the site, if necessary following enforcement action. It is said that the members were in no doubt that the life of the site did not have to be extended in the way sought by Grundon and that there were alternatives which involved the more or less immediate closure of the site. Those alternatives were considered and rejected as contrary to policy.
19. It is also submitted that, even if the officers should have advised that the site was technically a greenfield site in the way suggested by the claimant, it would have made no difference to the overall advice. The members would still have had to consider the alternatives in the way set out by the officers. That is a position that is supported by Mr Phillips QC for Grundon. He submits that, on analysis, even if there were a proper distinction to be drawn between notional greenfield and actual brown, it would make no difference to the outcome because there is no connection between the categorisation of site and the decisions being taken about which of the alternatives to adopt.
20. It is pertinent just to refer to some passages from the officer's report, bearing in mind, as I repeat, the need to see them in their context.
21. The report draws attention to the objections from, amongst others, the Friends of the Earth, objections which included a claim that the application should be considered as a greenfield site. The County Council's landscape advisers advice about the viability of the suggested options is set out. The planning assessment begins "The planning application is for the continuation of the existing previously consented activities", but makes it clear that the lands have no permission beyond May 2009.
22. The passage to which greatest objection is taken by the claimants start at 17.14:
"Notwithstanding the above safety and waste and rubbish disposal, Sward and Friends of the Earth feel that the application should be considered as a new development on a greenfield site. While it is agreed that there is no longer planning permission at the site, it is however an unrealistic assumption for the reason examined in the alternative section below. The site is in existence. There are existing ground conditions that cannot be ignored with open and active cells that need be taken into consideration. The site cannot be left as it is because it would be unsafe from a health and safety viewpoint, waste management legislation and national planning policy and because of the requirement for the site to be restored to an appropriate land form of benefit after use. These issues are, however, historical matters of fact and cannot be altered. I am of the opinion that they should not be given any significant weight in the decision making process and the application should be considered on its own merits as it stands."
23. There is then consideration to the alternatives. One is the expansion of capacity in existing non hazardous landfill sites. The second is the identification of a new non hazardous landfill facility somewhere else in the county. The third is the export of waste management out of the county. The fourth is the notional do nothing scheme whereby the operator immediately ceases operation and leaves the site. The fifth option is to implement a minimum engineered scheme to secure the long term engineering integrity and safety of that site.
24. When reaching a decision about ground 1, I should also deal with ground 2 and ground 3.
25. I have read out ground 2. The submission of the claimant is that the corollary of ground 1 is that members gave inappropriate consideration to the existing ground conditions and the fear that something had to be done about the current state of the site. Their consideration was limited to approving this application on the basis that it was better than doing nothing. It is pointed out by counsel for Grundon that fear is perhaps an inappropriate word, since everybody accepted that something had to be done. The response of the interested party is that it is absurd to disregard the existing ground conditions when giving consideration to a planning application.
26. Counsel for the Council submits that it was plainly important to take account of existing ground conditions.
27. Linked to that is ground 3, which I also read out earlier. The claimant says that the failure to take into account the greenfield status compounded the error of seeing the application as a continuation of the previous permissions, words taken from the description of the application itself. That is true, though it is the applicant's language, not the considered view of the Council.
28. The claimant says that, whilst the Committee knew that the previous permission had expired, it was lulled into a feeling that it would be doing no more than allowing the continuation of the existing permitted activities. It is submitted that this ignored the fact that the activities should cease and the site should have been restored. Continuation beyond 2009 was never supposed to be an option.
29. The Council responds that members were told that the existing permissions had expired. They were also told exactly what the applicants sought to do and, having read the officer's report, it seems to be that is overwhelmingly clear. It is also submitted by the Council that this ground is simply another way of looking at the greenfield issue.
30. The learned judge, in a careful and detailed written decision, said this, as regards the first three grounds:
"There is no merit whatsoever in grounds 1 to 3, which overlook the fact that the site could not be restored in accordance with the 1996 planning permission because the time allowed by it for the permitted mineral extraction landfilling and consequent restoration scheme was insufficient. The officer's report summarises the alternatives to granting permission for the present proposal, including the notion of doing nothing, which he advised would not be permitted in the minimum engineering scheme which would involve the least further landfill and consistent with safe restoration of the existing landfill. The officer's advice was that the latter would result in an inappropriate restoration contrary to Green Belt policy.
In the context, the officer was perfectly entitled to advise members that it was unrealistic to treat the site as greenfield. It existed and had to be dealt with. Further, members' attention was repeatedly drawn to the views and objections that such would be treated as greenfield. Far from taking into account an immaterial consideration, the defendant's decision would have been unlawful if members had failed to take into account the existing condition of the site which was highly material. The characterisation of the development as a continuation of previous development was not an error of law. As a matter of fact, extraction and landfill had previously taken place and would do so again if permission were granted. Members were well aware that there was no current permission for that."
31. The starting point for the claimants in their attempt to undermine the reasoning of the judge is to suggest that the context which she assumed was not true.
32. In my judgment, it plainly was. The reality is that the site was what it was, not what it should have been under the 1989 consent. Members were well aware of the 1989 consent and what it required and of the reality of the sites. It seems to me a false distinction and one which in any event did not have, and would not have had, any effect upon the decision of the members. It seems to me that the judge was plainly right for the reasons that she gave and that the reference to context was precisely correct. So in my judgment there is nothing in grounds 1, 2 or 3. They are not arguable and permission is refused.
33. I turn now to grounds 4 and 5, the wording of which I read out at the start of this judgment.
34. Ground 4 makes criticisms of the lack of fairness in the presentation of technical scientific data to the Committee. It is not alleged that members did not know the existence of the science reports or did not have access to them. What is said is that it is more than arguable that members did not understand the nature and substance of the competing scientific evidence because of the one sided and biased presentation in the officer's report. Counsel submits that the learned judge, in refusing permission, said it was not necessary for the court to rehearse the detailed scientific arguments. Whilst that might be fair in some cases, it was not fair in this case, where the applicant's arguments were rehearsed but not the objectors'.
35. The Council's response is that the report did not mislead the members and gave enough information and guidance for them to reach a proper decision. It is submitted that it was plainly correct for the greenfield report submitted by Sward to be subject to expert assessment by Atkins for the Council. Their report concluded that the HPA assessment was robust and it, in effect, rejected the criticisms made in the greenfield report. Counsel says it must have been clear to members from the officer's report that there was a conflict between what was being argued for the claimant and what Atkins and the HPA were saying.
36. The scientific issues arising on applications of this kind are complex. There were scientific views going both ways and the Council sensibly decided to appoint consultants having the expertise which the officers understandably lacked in that regard. It seems to me right and proper for the officers to refer, as it were, more authoritively to the Atkins appraisal than to the legitimate points of view and expert reports which were tendered by objectors and indeed the HPA.
37. Judge Roberts said on ground 4 this:
"The only issue is whether the defendant had proper regard to the scientific evidence as to the impact of this proposed development. There is no arguable case that it did not. Members were sent the greenfield science reports. The officer drew attention to those reports and objections to previous scientific evidence and others referred members to the reports. The officer was entitled to rely on the review of those reports and other scientific evidence by Atkins and independent experts instructed by the defendant specifically for that purpose. It was not necessary for the report to rehearse the scientific arguments."
38. Nothing has been said on this application that in any way undermines that conclusion. So, like the judge, I conclude that ground 4 is not arguable.
39. Next I turn to ground 5, which also I read out earlier. Judge Roberts described ground 5 as simply another way of putting the same point. Ms Graham Paul disagrees. She points out that Regulation 3 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations requires that environmental information is not only taken into account in making a decision but also that the decision notice sets out that the environmental information had been taken into account.
40. That provision is there, but is expressed in broad terms. The reports were environmental information for the purposes of the regulations. Ms Graham Paul says that it is arguable that the regulations require more to be said in a decision notice in respect of the environmental information taken into account than that which was provided on this occasion.
41. Counsel for the authority says that it is obvious that the greenfield reports were taken into account by the officers and members and gives detailed citation for that. He also says it was properly dealt with in the decision and the regulation refers to the decision, not to the notice of the decision. The report is part of the decision, as can been seen from the recommendation at the end report. It is recommended that planning permission be granted for the reasons set out in this report and he says it follows that the decision properly takes into account, as it says it does, the relevant reports by greenfield.
42. The matter is rammed home by the references drawn to the court's attention by counsel for the interested party, at pages 39, 43 and elsewhere in the bundle. The response by counsel for the claimant is that it may well be, since there is no judicial guidance on the matter, that very much more extensive documentation needs to be made available and disclosed in compliance with that obligation. That seems to me to be very unlikely. The obligation is expressed as follows: "the relevant planning authority or inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken environmental information into consideration and they shall state in their decision that they have done so". I do not think that the claimant disputed that environmental management information has been taken into consideration. The objection is that they have not stated in their decision that they have done so. It seems to me not arguable that there has been a relevant failure to comply with that. It is not the basis for a judicial review challenge.
43. That then brings me to the potential sixth ground. I say potential because this ground was not put forward until after the learned judge had refused permission on all the other five grounds. The application for an amendment is supported by a written statement from Ms Foster, the essence of which is as follows:
"The purpose of this written statement is to provide the court with the background facts underlying the application to amend the grounds of claim to add a claim of procedural irregularity arising out of inappropriate political party influence during the decision making process. The specific facts being alleged that gives rise to this claim is that Conservative chair and its councillor, Mark Hawthorne, was overheard discussing the case with Conservative members of the planning committee during a break in the committee meeting. The subsequent vote was on party lines with the Conservative leader casting the deciding vote to approve the application."
44. The claim is supported by a range of witness statements. There is evidence from a Councillor, from Mr and Mrs Cherry and from a Mr Beatty. This differs in detail but is broadly to the effect that the leader came into the meeting at one or more points and said, in terms which it is suggested that the Committee would have heard, that he was in no doubt that this application should be granted. There was evidence from Councillor Hawthorne that he said no such thing. There is evidence from the chair of planning and two officers to the effect that the Councillor came into the meeting only at one point and then only for the purpose of asking for speakers to be switched off. The evidence of two officers and of the chairman is that they had no idea that any such conversation took place and, if it did, it certainly never came across to them.
45. The application is put forward on the basis that Councillor Hawthorne is the leader of the Council. His views carry significant weight with the members. He is not a member of the planning committee and not entitled to take part in their decisions. There was no reason at all for him to be in the Council chamber before the meeting. His comment does not just express a predisposition towards a particular development, it goes straight to the outcome. All the Conservative members voted for the application. None of the other members did. Councillor Tracey is reported by another councillor to have said after the meeting that she made a mistake in voting for the application and the claimant says that several complaints were received about the committee meeting.
46. It is contended on the basis of the material that there is an arguable case of bias and impropriety which establishes this test. Would a reasonable and impartial observer have thought that there was a real possibility that Councillors were not just predisposed to vote for the developments but had pre determined the matter? The claimant relies on the case of Lewis. It is accepted that Lewis is a high hurdle.
47. The defendant contests this proposed new ground of claim on a number of grounds. First, the Council submits that it comes very late and should be refused. Planning permission was issued on 11 November. The application to make this ground was not made until 10 April 2012. It is well outside the three month time limit and there was no reason why it should not have been made earlier. The claimant had an opportunity to pursue the matter through the county's director of law and administration under the relevant procedure. But she did not to do so (although a complaint was made to the Ombudsman).
48. Next it is submitted that, even if the allegations that are made were true, there is still no basis for giving permission. Reliance is placed upon Lewis and it is submitted that, even if one applies the facts as alleged to Lewis, there is no arguable case. Counsel for the interested party takes a similar position and draws attention to a pertinent passage in Lewis, at paragraph 109 of the judgment of Longmore LJ:
"Conversely, however, the test of apparent bias relating to predetermination is an extremely difficult test to satisfy."
This case, in my judgment, comes nowhere near satisfying this test.
49. First, whatever in human terms makes the lateness of the application understandable, this is precisely the sort of claim which should be made very promptly indeed. It has the appearance of being an afterthought, particularly because it was put forward only after the judge had refused permission on paper.
50. Secondly a trial of this issue would go nowhere useful. It would be likely to be an inconclusive affair with large numbers of witnesses, all no doubt honest, all giving evidence about what they honestly recollected, unsupported by any contemporaneous documentation, or recording, without much opportunity for the application of the balance of probabilities. Even if the claimants were successful on the facts of what they heard and saw at the meeting, that would only, as it were, deal with the question of transmission rather than the reception of the message. There is a distinction to be drawn, which has divided counsel for the claimant from myself, between evidence and the substantive law. There must be the beginnings of an evidential case before one can start applying the legal principles upon which she placed such emphasis.
51. Thirdly, Mr Wadsley is right in his submission that, even if the case were made out on the facts, it is unlikely that there would be any basis for relief.
52. But it seems to me that, on the question of lateness alone, the application must be refused.
53. I should emphasise that, in the course of justice all witnesses start the same. I am not suggesting for one moment that any of those who have given witness statements start out being more reliable or credible than any other.
54. So, for the reasons I have given, I refuse permission on each of the five grounds, substantially on the same basis as the judge and I refuse permission to amend to add another ground.
55. MR WADSLEY: My Lord, in those circumstances I ask for the Council's costs. I appreciate that this is a permission hearing and that in those circumstances the rules in, I think it is, Leach and the Mount Cook Land case apply, and that, on a permission hearing, costs are not generally awarded against a claimant unless, for example, there are exceptional circumstances and in there is in the case a non exhaustive list of exceptional circumstances. But in my respectful submission there is a clear exceptional circumstance for the Council to be present there because of the order made by Mr Justice Lloyd Jones about the exchange of evidence and so on. So we're here essentially because of that and to support our position.
56. I would perhaps add to that in any event we would have had to have been here to deal with ground 6 and ground 6 is a very serious allegation which your Lordship has found not be arguable and it is really for those combination of circumstances that I suggest that the Council ought to have their costs. I can provide a schedule of costs if you are with me on the principle.
57. MR PHILLIPS: My Lord, can I make an application too for the interested party's costs, not of today, I hasten to add, but of preparing the acknowledgment of service and summary grounds?
58. My learned friend has referred to the Mount Cook case, which I'm sure your Lordship is well familiar with. My Lord, if I could just read out one paragraph from what Lord Justice Auld says was the appropriate approach to the order for costs against unsuccessful claimants. He said the effect of Leach, certainly in the case of which the pre action protocol applies, and where a defendant or other interested party has complied with it, is that a successful defendant or other party at the permission stage who has filed an acknowledgment of service pursuant to CPR 54.8 should generally recover the costs of doing so from the claimant whether or not he attends any permission hearing.
59. As your Lordship knows, the pre action protocol letter was served on my clients. They responded to it. We did put in an acknowledgment of service, the summary grounds for resisting and Her Honour Judge Robinson awarded costs against the Council to both the defendant and the interested party of preparing the acknowledgement of service. So, my Lord, I do ask for our costs of preparing the acknowledgment of service.
60. THE JUDGE: And that is an existing order made by the previous judge?
61. MR PHILLIPS: My Lord, certainly, yes, but I do remind your Lordship that that was her view, no doubt reflecting Mount Cook.
62. THE JUDGE: Thank you.
63. MRS GRAHAM-PAUL: Just in relation to the interested party, I have just checked the order of Her Honour Judge Robinson and the interested party have already been awarded their costs of acknowledging service, so I don't understand my learned friend to be asking for anything more than that.
64. In relation to the defendant's application for today's hearing, as I know, they too have been awarded their costs of acknowledging service.
65. There is two parts to it. Mount Cook is dealing with a permission renewal application and it deals with the normal principle that you don't need to attend, therefore, if you choose to attend, you may attend but you won't get your costs. There may be exceptional circumstances where the court should act at variance with that if the case is so hopeless, it is more like a kind punitive thing, and in that case it needs to be borne in mind there were rival developers in Mount Cook and so one developer was effectively seeking the judicial review as a tactic to stall the other one. So quite different from the case of this particular claimant.
66. Then there is the separate issue of the application to amend. Now, I can't resist costs in so far as they would have been incurred in relation to that particular application as would happen if acknowledgement of service had been filed, and I don't resist them on that basis, but I don't see any reason why they should extend to the renewal hearing today, which should go under the normal principles that the defendant doesn't recover their costs. It would have been possible for the defendant simply to file their evidence in relation to ground 6. It could even have attended only in relation to that ground, but they've chosen to go further to argue substantially in relation to grounds 1 to 5 as well, and so I do submit that it is not appropriate to award costs in respect of grounds 1 to 5 and it could only be appropriate in relation to ground 6, because there's nothing exceptional about the grounds 1 to 5. It is's a normal permission hearing in relation to those grounds.
67. THE JUDGE: So far as the acknowledgments of service are concerned, the judge has made her order, that will remain in place.
68. Further costs are refused. This was a perfectly reasonable application to bring, very forcefully and tenaciously and ably argued. It is not Mount Cook territory.
69. The only then issue that then arises is whether or not you should pay the costs of the contested application to amend. It seems to me that you can't resist those. But those costs are limited only to the application to amend and the argument relating to it, which would otherwise have been the subject of a separate hearing before Mr Justice Lloyd Jones.
70. MRS GRAHAM-PAUL: Thank you, my Lord. I don't know if it needs to be noted for the court that the claimant is in receipt of funding from the Legal Services Commission, so the order will need to reflect that.
71. MR WADSLEY: Yes. It's the same terms, my Lord, as the learned judge's order on permission.
72. THE JUDGE: So, unless there is anything else, and apologies for keeping you to 4.35. Thank you very much.