R (Hood) v Redcar & Cleveland Borough Council

Transcript date:

Friday, June 22, 2012



High Court

Judgement type:

Permission renewal


HHJ Jeremy Richardson QC

Transcript file:

Neutral Citation Number: [2012] EWHC 2366 (Admin)
Leeds Combined Court 
1 Oxford Row
West Yorkshire LS1 3BG

Friday, 22nd June 2012

B e f o r e:

(Sitting as a Judge of the High Court)




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Mr R Buxton (Solicitor Advocate) (instructed by Richard Buxton) appeared on behalf of the Claimant 
Mr A Gill (instructed by Redcar & Cleveland Borough Council ) appeared on behalf of the Defendant

J U D G M E N T 
(As Approved)

Crown copyright©

1.1. HIS HONOUR JUDGE RICHARDSON: This is a renewed application for permission to apply for judicial review by Carol Hood ("the claimant"), in respect of a decision made by Redcar and Cleveland Borough Council ("the Council") of 17th October 2011, when they granted a certificate of lawful use concerning Boosbeck Abattoir ("the site"), pursuant to section 192 of the Town and Country Planning Act 1990. Permission was refused on paper by His Honour Judge Behrens.

1.2. I heard this application yesterday over a period of two and a half hours. In deference to the arguments advanced and having regard to the importance of the case to the local community, which will be affected by this decision, I decided to reflect upon the issues overnight.

1.3. Although I explained my role at the conclusion of the hearing yesterday afternoon for the benefit of the residents who sat patiently in the public gallery, I feel it is worth repeating that:

(i) this court is simply adjudging the legality of the decision;

(ii) this court is not determining the factual merits (I am not the decision maker); and

(iii) in reaching my judgment I must apply the law as I find it to be.

1.4. The local residents may rest assured I have considered all the arguments that have been comprehensively presented by their solicitor.

1.5. It is very important for everyone to recognise that the issue for me is whether there is an arguable case that a ground for seeking judicial review exists which merits full investigation by the court.

1.6. I turn to the circumstances of this very interesting case. The village of Boosbeck lies within the planning jurisdiction of the Council. In the middle of the village is an abattoir. The site has been used as an abattoir, it would seem, since the 19th century. There is evidence to suggest the building was there prior to the settlement of the village itself. Certain it is that the building was used as an abattoir for many years.

1.7. The abattoir has not been a welcome aspect of village life for several residents, including the claimant in this case. The residents objected to the increased traffic and the noise associated with an abattoir, coupled with other intrinsic problems associated with such an enterprise.

1.8. Although there was an abattoir on the site for many years, an application for planning permission was made in 1990. The precise details are irrelevant for present purposes. The application was made on 11th April 1990 and was described as an "outline application for extensions and alterations to abattoir at High Street, Boosbeck" under reference L0543/90.

1.9. Permission was granted. It appears detailed consent was granted later. For the purposes of this application nothing turns on subsequent planning decisions.

1.10. The owners of the abattoir continued in business until 2007, using the building for the slaughter of animals. In 2007 the owners became insolvent and the abattoir closed down. It has stood empty ever since.

1.11. It is unnecessary for present purposes to set out the recent history in any detail. It suffices to say that there is a developer (Mr Barnares) who wishes to commence business in the abattoir and use it as such.

1.12. On 9th September 2011 an application was made under section 192 to the Council. This caused some consternation among the local residents and the local Member of Parliament became involved. They have formed themselves into a group called "Boosbeck Against Slaughter House" which has the attractive acronym BASH.

1.13. On 17th October 2011 the Council granted the certificate of lawful use under section 192 in these terms:

"Redcar & Cleveland Borough Council hereby certify that on 9/9/2011 at The Abattoir, High Street, Boosbeck, shown outline red on the attached plan was lawful in respect of the proposed use of the abattoir site within the meaning of section 192 of the Town and Country Planning Act 1990 (as amended) for the following reason:

Based on the information provided the local planning authority is satisfied that the reuse of the site and associated buildings, the subject of this application and proposed to be used for abattoir services would not result in a material change of use as defined by section 55 of the Town and Country Planning Act 1990 (as amended) for which further planning permission would be required. In arriving at this determination the local planning authority has had regard to the fact that the site, the subject of the application is vacant and has been so since 21st July 2007, but it is noted there is no evidence of the use being supplanted by another use for the use being abandoned."

Section 192(1) and (2) provide:

"(1) If any person wishes to ascertain whether-

(a) any proposed use of buildings or other land; or

(b) any operations proposed to be carried out in, on, over or under land, would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.

(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application."

1.14. This section and indeed section 191 are very useful provisions, for they allow any person to ascertain from the local authority whether the proposed use of a building or operations to be carried on within a building would be lawful. It is important to note that the local authority would be compelled to issue a certificate if they have information before them to reveal that the use would be lawful. In reaching that assessment the local authority must view all relevant circumstances, not simply planning consents. All relevant information must be weighed and put in its proper context before reaching a conclusion. If the conclusion of the local authority is that the use of the building or the operation of the building for a particular purpose is lawful, then they are obliged to issue the certificate.

1.15. The issue in this case is whether the Council were correct in their assessment that the site was able to be lawfully used as an abattoir.

1.16. Before returning to the facts, I must mention European Union law. There is an EU Directive called the Environmental Impact Assessment Directive. The original Directive was issued in 1985. It has been modified over the years. Its most recent EU incarnation was promulgated on 13th December 2011 as 2011/92/EU. At the time the decision under section 192 was made in this case, the relevant environment impact assessment provisions were contained in an earlier EU Directive which was translated into domestic law by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, which came into force on 24th August 2011. There were previous incarnations of the Directive and regulations which obtained in 1990. It is unnecessary to make detailed reference to them.

1.17. I do not intend to set out all that must be done to perform an EIA or environmental assessment. It has, however, been made very clear within the jurisprudence of the Court of Justice of the European Union that Member States must ensure compliance with the Directive.

1.18. The most relevant case is Wells v Secretary of State for Transport, Local Government and Regions [2004] 1 CMLR 31, decided by the EUCJ on 7th January 2004. I have considered that case with some care.

1.19. I return to the facts of the case. In 1990 outline planning permission was granted by the council to the owner of the site to modify the buildings for use as an abattoir. It is completely unclear whether an EIA was undertaken at the time. Certain it is that it should have been. There is no record of it having been done. As of 1990 the Council were bound by the Town and Country Planning Act (Assessment of Environmental Effects) Regulations 1988. The council would have been compelled to take into account environmental information before granting planning permission see paragraph 4(2). Schedule 2 paragraph 7(f) provided that an installation for the slaughter of animals is covered and environmental information must be submitted. At that time there was no requirement to have screening open to the public. That changed in 1997. Whether the EIA was undertaken or not is, as I have indicated, not recorded. It certainly should have been carried out. It would have been unlawful and subject to challenge (within the time limits then permitted) had it not been.

1.20. I have read the witness statement of Adrian Miller, who is the development manager within the Council. He sets out what he believes to have been the procedures in 1990. He asserts that it would be unsafe for the court to conclude that environmental screening did not take place. He says it was quite common for it to be done back then but not recorded. Set against that is an email of 5th January 2012, by a subordinate official of the Council who boldly announced that no screening was undertaken in this case.

1.21. Certain it is, there is no record of any environment assessment having been undertaken in 1990 although the absence of records, according to a senior official of the Council, was common at the time. I am left with the position that no one knows definitively whether there was compliance with relevant regulations at the time or not.

1.22. In these circumstances I take the view, for present purposes only, I will make an assumption that, in the absence of positive proof of compliance, there was a breach of the relevant regulations in 1990. In one sense that does not matter; as the time for challenging the planning decision has long since passed. A planning consent was given by the Council in 1990. Whilst it may have been subject to challenge 22 years ago; it certainly is not now.

1.23. Accordingly, it must be clearly understood (however unpalatable that is to some) that the 1990 planning consent was lawful. Indeed the claimant by this application is not seeking to have that set aside. Again, let there be no doubt that Mr Banaras is perfectly entitled to conduct the business of an abattoir at the site.

1.24. The challenge by the claimant to the Council giving a section 192 certificate to Mr Banaras is based upon the assertion it acted unlawfully when it granted the section 192 certificate as I shall now set out.

1.25. Mr Richard Buxton has represented the interests of BASH tenaciously and has made detailed submissions both orally and in writing which I have considered with some care. I simply remind myself: it is important in a case of this kind to concentrate upon what really matters and jettison that which does not. I have no intention of reciting the detailed submissions made to me. I feel the core points can be distilled quite succinctly.

1.26. Mr Buxton accepts the 1990 planning permission is valid. It was not challenged and cannot realistically be challenged now some 22 years later. He argues that the Council should have exercised their powers even after this remove of time to revoke the planning permission. He argues for the paramount status of EU law (as enshrined in regulations in the United Kingdom) over everything else, relying upon the EUCJ decision in Wells.

1.27. His argument is engagingly simple and stripped of much surplusage comes to this:

1. In 1990 the Council were obliged to undertake an environmental assessment under the regulations of the day imposed by an EU directive.

2. In 1990, the Council did not to do that (as I have assumed, although they might have; there is no record that they did).

3. In 1990 the Council (actually a predecessor local authority to the Council) granted planning permission in circumstances where they ignored the regulations about environmental assessment.

4. That planning permission cannot be set aside after this remove of time. It is a valid planning consent.

5. However the Council, having now recognised that the 1990 planning consent was flawed, should not have issued a section 192 certificate to Mr Banaras.

6. This is because under EU law (as explained in Wells) public authorities must ensure that these obligations are put into effect above all else.

7. The principles in the Court of Appeal case of Noble have no applicability to the circumstances of this case.

1.28. It will be seen that I have much condensed the extensive arguments of Mr Buxton; but at its core that is what he asserts on behalf of the claimant.

1.29. It is perhaps worth remembering that at the time the Council issued the section 192 certificate, the potential for the absence of a 1990 environmental assessment was not considered. The mistake (as I have assumed it was) or possible mistake (as it is) was not known. It was brought to light later.

1.30. Mr Anthony Gill, counsel for the Council, advanced their response to this series of propositions, with these submissions basing himself on the case of Noble:

1. When the section 192 certificate was granted, it was not merely the 1990 permission that was taken into account but all the known history of this site.

2. There is no evidence that the Council ignored the 1988 regulations there was simply no obligation to record them.

3. What is being sought in this case is an impermissible collateral challenge to the original 1990 planning permission years after the permitted period for challenge, which is 3 months. That period is permitted procedural autonomy which is regarded as sufficient protection for the enforcement of EU obligations.

4. The planning consent is thus valid and the section 192 notice is valid.

5. In any event this case, even if successful, cannot alter Mr Banaras' entitlement.

1.31. I have considered with some care the submission of Mr Richard Buxton for the claimant in his helpful skeleton argument and his submissions. I make these points immediately:

1. I have to be satisfied there is a properly arguable case before I may grant permission.

2. There can be no doubt there is a clear obligation on a Member State of the European Union to ensure compliance with EU directions. How that is done is a matter of procedural autonomy of a Member State (Wells).

3. This court is bound by the case of Noble.

It very important to understand the full and proper import of the two decisions, namely Wells and Noble. The facts of those cases were different to the facts of this case, but I feel critically important principles of law can be derived from those cases. No useful purpose would be served by a detailed recitation of the facts of each of those cases. Wells was about the Secretary of State being required to revoke the planning consent when there was a clear breach of regulations made pursuant to an EU Directive. The EUCJ answered the issues raised by the facts, by making it plain there were heavy obligations on a Member State. I refer to paragraph 64 of the judgment of the court and quote paragraphs 65 and 66:

"65. Thus, it is for the competent authorities of a Member State to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment -----. Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of Member States, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided for by Directive 85/337.

66. The Member State is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment."

1.32. It is however necessary to read on because there is also another important principle of EU law which is referred to at paragraph 67:

"67. The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness).See to this effect inter alia case C 312/93 Peter Broeck (1995) ECRI 4599 paragraph 12 and case C 78/98 Preston & Ors [2000] ECRI 3201 paragraph 31)."

Consequently in that case it was for the national court to determine whether it was possible, under domestic law, for the consent already granted to be revoked or some other alternative remedy. In fact, in Wells, the case was settled and thus there was no English court ruling on that residual issue.

1.33. The case of Noble was about the decision of a local authority to approve reserved matters on the grant of outline planning permission of a leisure development without having required an environmental assessment. Relevant to this case, at first instance, Richards J (as he then was) said this:

"48. On normal domestic law principles, as discussed above, such a challenge to the validity of an earlier decision is impermissible. I see nothing in the EIA regime that subverts the normal position. What the Court said in Wells about the obligation to nullify the consequences of a breach of the Directive is not to be taken as calling into question the validity of earlier decisions which are no longer open to challenge under domestic law. The obligation was expressed to be subject to national procedural rules (with a standard proviso concerning the principles of equivalence and effectiveness). The particular issue in Wells was whether an earlier permission could be revoked or modified, rather than whether it could be treated as invalid; and even that particular issue was clearly stated to be a matter for determination by the national court applying national procedural rules. If, moreover, it were possible to mount indirect challenges of this kind to the validity of earlier EIA decisions, that would be destructive of legal certainty, which is as much a principle of EC law as of domestic law."

1.34. The Court of Appeal, in a careful judgment of Auld LJ (with whom Mummery LJ and Gage LJ agreed), having had extensive argument on the point made the position clear at paragraphs 59 to 61 of his (Auld LJ's) judgment:

"59. In considering whether a national procedural provision renders application of community law impossible in practice or excessively difficult, it is necessary, as the European Court stated in Peterbroeck, at para 14, to look at its role in its domestic context and in the light of the basic principles of the domestic legal system, including the principle of legal certainty. As to domestic rules of limitation, the Court has upheld the importance of giving certainty to public decisions by holding that the application of reasonable time limits for challenging them does not infringe the principle of effectiveness; see Case 33/76/4/0/ Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, where the Court, at 1997, stated:

'Applying the principle of co operation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law.

Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such further conditions cannot be less favourable than those relating to similar actions of a domestic nature.


In the absence of ... measures of harmonisation the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules.

The position would be different only if the conditions and time limits made it impossible in practice to exercise the rights which the national courts are obliged to protect.

This is not the case where reasonable periods of limitation of actions are fixed.'.

60. Moreover, there is authoritative domestic and EC authority for the proposition that proceedings for judicial review afford adequate protection for community law rights in respect of the validity of public actions; see on this issue Bourgoin SA v Ministry of Agriculture [QB] 716, CA, per Parker LJ and Nourse LJ at 785BE and 789G 790D respectively; and Upjohn Ltd v Licensing Authority established by the Medicines Act 1968 [1999] 1 WLR 927, ECJ, at paras 33 37.

61. Applying those principles to the facts of this case, if either of the two outline planning permissions required and/or were not the subject of valid screening exercise, there was a clear domestic remedy, if exercised promptly, for quashing either of them and/or the screening opinion at the leisure park outline permission stage. The domestic requirement of promptness in the exercise of the remedy, as Miss Robinson observed, strikes a reasonable balance between the need to provide a remedy and, in this instance, the public interest in the effective administration of planning controls and legal certainty. Accordingly, in my view, this challenge to the reserved matters screening opinion was not deprived of effect by the Council's reliance on the formal validity of the outline permissions and the screening opinion in relation to the latter, since they had been challengeable by judicial review, if sought promptly a sufficient remedy as a matter of community law."

I am bound by that decision and it seems to me that the following propositions of law emerge from the consideration of an amalgam of the two decisions:

1. There is an obligation on Member States of the EU to ensure that regulations made under an EU Directive are followed.

2. National courts (applying the principle of co operation contained in Article 5 of the Treaty of Rome) must ensure legal protection for citizens derived from EU law.

3. It is for the domestic courts of each Member State to determine the procedure governing the protection and enforcement of the rights enshrined in EU law.

4. Judicial review and other appellate proceedings (under planning legislation) provide an adequate remedy in England and Wales, for challenging in a timely way the validity of public actions.

1.35. In this case the time for challenging the validity of the 1990 planning permission was in 1990, when it certainly would have been definitively known whether the environmental assessment occurred. The validity of that decision cannot now be challenged 22 years later. In 2012, when the Council were invited to issue a section 192 certificate, they were required under that section to satisfy themselves that the operation of an abattoir on the site would be lawful. If they were so satisfied they must issue a certificate to that effect as the section employs the word "shall".

1.36. At the time they considered the issue they are entitled to view all relevant material including the history of the site and all other matters which must be case specific. This includes planning consents. There was a valid planning consent in 1990. The fact it was open to challenge (more accurately might have been open to challenge) 22 years ago, but not now, is irrelevant for the purposes of a section 192 certificate.

1.37. Even making the assumption in favour of the claimant that the environmental assessment was not done, does not alter the position that the consent granted in 1990 is valid and cannot now be indirectly cast aside or invalidated by a side wind after all these years, simply because regulations made under an EU Directive were, or may have been, ignored.

1.38. When reaching a decision under section 192 the Council had to look at all the material to decide lawful use. Their retrospective view of the whole scene demands that they look at everything relevant. This site had been an abattoir for a very long time. It is simply too far-fetched to suggest that they should not have issued the section 192 certificate because of an alleged breach of EU law 22 years ago. That was but one part of the matrix which they had to consider. They would not have been justified, in my judgment, in refusing the certificate even if they had specifically known of the lapse. It is impermissible, in the context of this case, to retrospectively put right an alleged wrong by the methods sought to be advanced by Mr Buxton. Case law, binding upon me, and common sense are hand in hand on this occasion.

1.39. I comprehensively reject the submission of Mr Buxton as being properly arguable. The submissions he made are simply not arguable, in my judgment. I repeat: the time for challenging the validity of the 1990 decision was in 1990. There was an accepted procedure, with legitimate time constraints, given the public nature of the decision, to challenge that position then. That is procedural autonomy properly in the hands of the national courts. It is utterly unarguable to suggest that in 2011 the Council should have refused the section 192 certificate in this case, having viewed the matter holistically (as it was engagingly described by Mr Gill) or, as I would prefer to say, having viewed all the circumstances.

1.40. All the arguments advanced by Mr Buxton about the potential for a reference to the EUCJ were interesting but, in the result, irrelevant as EU law is very clear, particularly now that it has been explained by the Court of Appeal in Noble. The fundamental propositions of Mr Buxton are, in my judgment, unarguable. I have not considered the delay points advanced by the Council. I was not overly attracted to them. If there had been an arguable point, I would have examined delay with more care. But my inclination would have been to override the delay points.

1.41. I know this decision will be disappointing for the residents and the members of BASH. This decision is made solely on legal grounds. This application for permission is dismissed.

1.42. JUDGE JEREMY RICHARDSON QC: Mr Gill, is there anything more that needs to be done?

1.43. MR GILL: No my Lord, there are certainly no issues on behalf of the Council. I am most grateful for your time and consideration.

1.44. JUDGE JEREMY RICHARDSON QC: Very good. There is no application for costs. You were here most helpfully but I think that would be impermissible in all the circumstances.

1.45. MR GILL: Indeed my Lord, the common procedure would not be for such an application to be made and the Council would not seek to do so.

1.46. JUDGE JEREMY RICHARDSON QC: Thank you very much indeed, that is most helpful and a sensible course of action. I am very grateful however for your attendance on this application. It has enabled this case to proceed with a level of care and attention that it deserved and I am very grateful to you.

1.47. MR GILL: Thank you my Lord.

1.48. JUDGE JEREMY RICHARDSON QC: Now, you are here on behalf of Mr Buxton, I dare say, today.

1.49. MISS BUCK: I am my Lord.

1.50. JUDGE JEREMY RICHARDSON QC: Would you pass on my thanks to him for the submissions he made, even though they have found to be wanting in the result.

1.51. MISS BUCK: I will do my Lord. He asked a request: an order for community legal aid assessment. He says that the normal form of that would be the claimant's costs be subject to legal assessment under the provisions of the Access to Justice Act 1999.

1.52. JUDGE JEREMY RICHARDSON QC: Certainly. With Mr Gill, would you be kind enough to put together a draft order before you leave this afternoon, setting out the fact that I have given judgment and the fact that I have refused permission to apply. I make no order as to costs save and except the one that you have mentioned. There will be a detailed assessment.

1.53. What I propose to do, although there are not as many members of the local residents in the public gallery as there were yesterday, I think it is important I should say a few words to them before we leave this afternoon.

1.54. MISS BUCK: I am grateful, my Lord. There was one further request that Mr Buxton requested me to put to you. I am fairly sure having looked at the White Book myself that it is impossible but I will put it over as I am instructed to he requested that any 7 days' extension to appeal to the Court of Appeal be moved until he was in receipt of the transcript of this judgment. I do not believe that is in fact possible; it has to be on the date of the decision.

1.55. JUDGE JEREMY RICHARDSON QC: No, I don't think it is possible. Time runs, I am afraid, from now. You can ask for an expedited transcript and I am sure one would be made available within a very short space of time but the normal time limits, I am afraid, must obtain.

1.56. MISS BUCK: I am grateful my Lord.

1.57. JUDGE JEREMY RICHARDSON QC: Very good. Anything else? Thank you very much.

1.58. Ladies and gentlemen, I have no doubt at all that all of you will be disappointed by the decision that I have reached this afternoon and I understand and fully respect that. I am sure others of your number will feel similarly disappointed when you telephone them or contact them in a short while and discuss matters, as I am sure you will, over the weekend.

1.59. Can I tell you this? Normally applications for permission to apply are comparatively short hearings, frequently no more than half an hour or something of that kind. But because this is a case of local public importance, it was decided that there should be a much longer hearing and that is why a good proportion of yesterday afternoon was set aside for the hearing.

1.60. It is very important that you appreciate, as I am sure you will, that I am here not as an appellate court; I am not here to review the actual decision itself, in the sense as to whether it is a meritorious matter on the facts, I am here simply to judge the legality of it: whether the decision was right in law. If there was an arguable case, then I would give permission. But I have, as I have indicated, ruled that there is not an arguable case. Interesting arguments were advanced but ultimately they are unarguable for the reasons that I have set out.

1.61. I am saying these words to you deliberately because I want you to appreciate, and I hope you will, that this case has received, given that it is at its application stage, and it will go no further, the most careful and lengthy consideration. Indeed, in many respects, this case at an application stage has received more attention than some cases do even if permission is granted. So this has not been made cursorily and I have reflected overnight very carefully on the issues that were raised. But in the result, for the reasons that I have given, the arguments advanced have been found to be wanting.

1.62. I repeat: I appreciate that this must be disappointing to you but I am here simply to apply the law as I find it to be and I interpret it. I do not underestimate how not only disappointed you must feel, but local campaigns of the kind you are involved in are always difficult things and you must feel up against it. But, in the result, I have to decide the case on the law and that I have done. I want you to understand that I have viewed this with the greatest of care and have taken a considerable amount of time yesterday and today, and indeed overnight, to weigh the issues. I have given my reasons at some little length this afternoon. Thank you all very much indeed for your patience in what must be a very frustrating time for you all. Thank you all very much.

1.63. Unless there is anything else.

1.64. MR GILL: My Lord, Miss Buck and I will seek to draft an order.

1.65. JUDGE JEREMY RICHARDSON QC: If you could do that in the next few minutes and pass through for approval, that would be very helpful. I am very much obliged to you all. Thank you very much indeed.