Young v. Oxford City Council

Transcript date:

Thursday, June 27, 2002



Court of Appeal

Judgement type:

Permission and Substantive


Pill, Potter, Judge LJJ

Neutral Citation Number: [2002] EWCA Civ 990






(Mr Justice Ouseley)

The Royal Courts of Justice

The Strand


Thursday 27 June 2001








on the application of







Transcript prepared from the Steno Notes

of Smith Bernal Reporting Limited

190 Fleet Street London EC4A 2HD

Tel: 0207 404 1400


MR R HARWOOD (instructed by Richard Buxton, 40 Clarendon Street, Cambridge) appeared on behalf of the Applicant

MR R TAYLOR (instructed by Oxford City Council Legal Services, Town Hall, Blue Boar Street, Oxford) appeared on behalf of the Defendant



(As approved by the Court)


Crown Copyright

Friday 27 June 2002



LORD JUSTICE PILL: This is an application for permission to appeal, with appeal to follow if permission granted, against a judgment of Ouseley J given on 18 October 2001. Ouseley J refused permission to apply for a judicial review aimed at quashing the grant of planning permission by Oxford City Council ("the council") for the change of use and conversion of a listed building, Hill Top House, Headington, Oxford and the construction of five mews houses in the grounds. There was also a listed building consent which is not the subject of challenge.


2. Hill Top House is a Grade II listed building of the late 18th and early 19th century, with two later extensions. The development involved external modifications to the existing building, a change of use from seven existing residential units, including four bedsitters, to six flats and, controversially, the erection of a detached terrace block of five two-storey mews houses near the building. Mr John Martin Young ("the applicant") lives near Hill Top House and is chairman of the Headington Hill Residents' Association. If permission to apply for judicial review is granted, and permission to appeal, this court has power, by virtue of CPR 52.15(4), to proceed to determine the case. There is also an application for permission to call further evidence.

3. It is submitted that the council, in determining the planning application, failed to have regard to a material consideration. The material consideration is alleged to be the policy statement of English Heritage entitled "Enabling Development and the Conservation of Heritage Assets" 1999 ("the policy statement"). English Heritage are statutory advisors to the Secretary of State. The policy statement provides that it is to be read with PPG15 and PPG16. Its precise status as a policy statement does not need to be determined because the council concede that, as planning authority, they should treat the policy statement as a material consideration in an appropriate case. They submit that it was not material to the decision taken. They further submit that permission should not be granted because of the applicant's delay in making his application to apply for judicial review, and on that ground also the judge found in their favour.

4. The concept of enabling development is defined in the policy statement (page 65 of the bundle):


1.1 Many planning applications affect heritage assets. Most either enhance, or are not materially damaging to, the asset or its setting, they conform with other planning policies, and planning permission rightly follows ...

1.2 On occasion, however, 'enabling development' is proposed which, whilst it would achieve significant benefit to a heritage asset, would normally be rejected as clearly contrary to other objectives of national, regional or local planning policy ...

1.3 Such proposals are put forward on the basis that the benefit to the community of conserving the heritage asset (and sometimes additional objectives, for example providing affordable housing or employment) would outweigh the harm to other material interests.

1.4 The essence of a scheme of 'enabling development' is that the public, typically the community in a particular area, accepts some disbenefit as a result of planning permission being granted for development which would not otherwise gain consent, in return for a benefit funded from the value added to the land by that consent ... "


The issue of substance in this case is whether planning permission was granted because the development of the mews houses was acceptable in its own right, or whether it was granted on the basis that it was a proposal which would not otherwise obtain consent, but that consent was justified in return for a benefit funded from the value added to the land by that consent.

6. It is common ground that the policy statement was not considered by the council's planning committee when dealing with the planning application. If the permission for the mews houses was acceptable in its own right, reference to the policy statement was unnecessary. If it was "enabling development" ;, reference to the policy statement was necessary. The statement provides for a general presumption against enabling development which does not meet specified criteria. The statement was issued because English Heritage had become increasingly concerned "by the damage caused by developments put forward primarily as a way of benefiting heritage assets, but which destroy more than they save."

Consideration by Committee

7. The application came before the council's planning committee on 27 September 2000. The council's officers recommended the grant of permission subject to conditions. In their report they stated:


10. ... Accordingly, it is the officers' view that the setting of the listed building would not be demonstrably harmed by the proposed mews buildings ... ...

12. Returning to the proposed mews building specifically, it is important to point out that this element of the scheme has been brought forward especially as a means of enabling the whole development to be financially viable. ... ...

15. Officers welcome this package of proposals, which allows for the refurbishment and putting into full use a listed building whose condition has given serious rise for concern over a long period. Costings of the enabling mews development, which officers consider acceptable in itself and in relation to the listed building setting and in relation to the listed building, its setting, and the conservation area have been requested and those are likely to be available for update at the Planning committee."


On 27 September, however, the committee resolved that the application:


be deferred for the Head of Planning Control and Conservation to seek amendments to the design, density, proposed materials and siting given the close proximity to the listed building of the terraced block of mews houses."


The adequacy of other aspects of the proposal -- access road and car parking -- was also mentioned.


However, the Committee expressed its support for the proposed refurbishment of Hill Top House and asked that any amended plans received be reported back to the Committee."


The Head of Planning Control notified the applicant's planning consultants of the members' wish, but they made no amendments, referring to the "original and sympathetic scheme for the new development". They stated that " unless enabling development is supported, a bare minimum of repair will be done to the Listed Building, multi occupancy will persist, and in a few years' time the cycle will start all over again."

11. In a further report to the planning committee, the officers stated that the applicants for permission:


... do not propose to amend the permitted scheme in any way, because, as they point out, the 5 mews units are necessary as enabling development, to provide for the costs of repairing and refurbishing the listed Hill Top House building to be met, in compliance with building regulations, environmental health and listed building consent requirements. The agents have provided a basic financial breakdown that estimates the associated costs of repair and refurbishment of Hill Top House as being in the region of £1,145,000 and that without the 5 new build mews units, this cost cannot possibly be met simply from the re-sale value of the refurbished flats in Hill Top House itself. They estimate a loss of around £260,000 would accrue, without the new build units involved."


The officers reported on the proposals of the applicants for permission:


They further set out that the finished scheme will provide 5 units, suitable for family accommodation in Hill Top House and that the proposed mews development has in their opinion been designed to respect and complement the listed building, yet add an interesting and imaginative small new development In a style that would respect the character and appearance of the main house, using materials that would weather well and relate to buildings on the site as well as neighbouring sites."


The officers concluded:


Officers stand by their previous assessment of the development. In brief, they consider that this package of proposals allows for the sensitive refurbishment of the Hill Top House Listed Building, bringing it back to a good standard of residential use in so doing. The enabling mews development is considered to be well designed in itself and relates well to the setting of the listed building. Subject to the conditions which were set out in the previous report's recommendation, officers support the scheme as submitted."


The minutes of the planning committee for 6 December 2000 record that the application for planning permission be approved, subject to conditions. The conditions are not relevant to the present issue. Eleven members, including the Chairman, were present at the meeting.

Judge's conclusion

15. The submission on behalf of the applicant was that the decision should be construed as a grant of permission as enabling development within the meaning of the policy statement. The judge referred to that submission as "plainly arguable". However, he concluded:


17. I have eventually been persuaded that the submission of Mr Taylor [counsel for the council] is right, that it is not just for the claimant to show that the members found the design unacceptable in September 2000 and continued to find it unacceptable in 2000, allowing the financial considerations to override the desired deficiency. I accept Mr Taylor's submission that they have not succeeded in so doing. In my judgment, the position of the Council members in September 2000 can be seen as a degree of unhappiness and concern about the design, density, materials and so on, but one in respect of which no concluded view had been reached. If it had been the case that a concluded view as to the lack of acceptability in the design and so on of the mews had been reached, I would have expected that to have resulted in a refusal rather than in a desire to negotiate and see what changes could be made.

18. I take the view as well that the provision of financial material, which may well have been done as a matter of further caution by the developers, does not of itself show that the councillors must have been regarding the development as objectionable. The material could, as I have said, been provided as a matter of caution by the developers and seen by the members not as the factor which outweighed the objections to planning permission, but merely as a further benefit. But, crucially, I take the view that if the members had in the end reached the view that the officers' advice was to be rejected, namely the advice that the mews houses were acceptable in their own right, and that it was only the financial circumstances that caused the permission to be granted, that would have been apparent in the resolution, and I do not accept that I should draw as the more probable inference that they retained and elevated to the level of an objection the concerns which they had on an earlier occasion about design. I take the view that the appropriate inference to draw is rather than that they were persuaded by the financial matters being made more explicit, that they were persuaded by the persistence of their officers in saying that the development was quite acceptable and they could find no justification for disagreeing with that assessment as to the acceptability of the mews."


The judge also commented that it was a matter which could have been made more straightforward to deal with:


... if there had been a witness statement or material from the City Council which set out more explicitly what the basis for the decision was. As it is, the court has to draw an inference bearing in mind that it does not have the benefit of that statement."

Subsequent events

17. Since the date of the judgment, members of the Planning committee which heard the application on 27 September and 6 December 2000 have made statements. Mr Colin Cook stated that he had been made aware of the comments of Ouseley J that the matter could have been made more straightforward if there had been a witness statement or material from the city council. In his statement dated 3 January 2002, Mr Cook stated that the collective view on 27 September was "that the repair and restoration of the Listed house was the prime and urgent objective. The proposed five new mews houses were an unacceptable intrusion on the Listed building and its setting." The statement continues:


My recollection of the committee's deliberations at the meeting of 6th December 2000 is that there was disappointment that the desired design amendments had not been made to the proposed mews houses, and that they remained an unacceptable intrusion on the Listed house. However the applicant's reported financial justification for the mews houses as being essential to fund the main house's restoration and refurbishment, and the applicant's reported assertion that without the enabling development the restoration would not proceed, in my opinion persuaded the committee to grant the planning permission in spite of its reservations. Accordingly this was the committee's decision."


Mr Cook added that the policy statement was not made known to the members of the committee. Had they been referred to the statement it would have made a significant contribution to the decision.

19. Written statements to the same effect agreeing with that of Councillor Cook had been made by Councillors Moss, Gray, Coats, Keen, and Clarkson. They each state that the views of Councillor Cook are "an accurate reflection of the committee's views as I understood them at the time." All six councillors were present at both meetings and together constituted a majority of those present on 6 December. I would not draw inferences adverse to the council by reason of the adjournment of the application on 23 September for further enquiries.

The problem

20. While I understand the wish of Ouseley J for "a witness statement or material from the City Council", I see dangers in permitting a planning authority, whether by its committee chairman or a planning officer, providing an explanatory statement. The danger is that, even acting in good faith, the witness may attempt to rationalise a decision in such as way as to meet a question which has arisen upon the effect of the decision. Moreover, it will usually be impossible to assess the reasoning process of individual members and there are obvious dangers in speculating about them. It is therefore important that the decision-making process is made clear in the recorded decisions of the committee, together with the officers' report to committee and any record of the committee's decisions. Decisions recorded in the minutes should speak for themselves.

21. The problem has arisen in this case because, as the parties agree, adherence to planning policies required that the decision-making process potentially involved two stages. The committee should first have considered whether the mews development was acceptable in planning terms on its own merits. If so, permission should have been granted. If not, the committee should have gone on to consider whether permission should be granted to the project as enabling development within the meaning of the policy statement. That would involve a consideration of the policy statement and its application to the facts of the case. The committee should have been invited by the officers to approach the application in that way. There would have been no difficulty in recording in the minutes the basis upon which permission was granted.

Admission of further evidence

22. We indicated in the course of the hearing that we were prepared formally to admit the statements of the six councillors in evidence, though their relevance and value call for further analysis in the context of the facts of this case. The application was opposed on behalf of the council. It was accepted that the councillors had not been approached on behalf of the council with a view to clarifying what had happened at the meetings. There was and continues to be a complete silence on that subject on the committee's behalf.

23. The basis of the opposition to the admission of the statements was that the applicant could have contacted the councillors in advance of the hearing before the judge. That submission, in my view, gives insufficient weight to the difficulties involved in an applicant approaching the council's own members in the circumstances then existing. It would also leave the applicant open to suggestions of pressure and even impropriety. An approach was likely to meet with a hostile response from the councillors and from the council itself. The approaches would not have been necessary had the council's decision-making process been suitably recorded, for reasons which will appear. Once the issues had been clarified by the judge, and he made the comments he did, the door was open to approaches which, not surprisingly in the circumstances, met with a ready response.

Conclusion on merits

24. On the material before him, I would probably have reached the same conclusion as Ouseley J. While there were pointers in both directions as to whether the application for a terrace of mews houses was presented to the committee as acceptable on its own merits or only as enabling development, I would have drawn the same inference as did Ouseley J and for the reasons he gave. The issue before the judge was finally balanced, however, and the evidence now available from six councillors that the mews terrace " remained an unacceptable intrusion on the listed house" strongly indicates that the first question, had it been put to the committee as a separate question, would have been answered in the negative. I cannot read the word"unacceptable", used by witnesses, as meaning anything other than unacceptable in planning terms. There is credible evidence that the committee would have refused permission on the first basis. They would then have gone on to consider the second possible basis for granting permission.

25. I would expect statements of committee members to be admissible only rarely in circumstances such as the present. In any event it will not normally be necessary, or even helpful, to seek such evidence if the documentation of the planning authority is sufficient for the circumstances of the decision. In this case, however:

(1) it is common ground that the decision to be taken potentially involved a two-stage process;

(2) there would have been no procedural difficulty in the committee considering it as such;

(3) there would have been no difficulty in recording in the minutes of the meeting the basis upon which the decision was taken;

(4) that procedure was not followed and it is impossible to know with certainty the basis upon which the decision to grant permission was made: Ouseley J highlighted the problem;

(5) a policy document essential to a consideration of the second stage, if it arose, was not brought to the attention of the committee;

(6) the evidence now submitted by six members of the committee makes it impossible now to draw the inference that the decision was taken on the basis that the mews development was acceptable on its own merits;

(7) in the event, which now appears probable, that the application would have been rejected on its own merits, the permission could only have been granted on the second possible basis, that is as enabling development;

(8) it is common ground that a permission on that ground cannot stand because a material consideration -- that is the policy statement ;-- was not brought to the attention of committee members.


In this case the evidence of the committee members is relevant and admissible. The effect of it, in these circumstances, is that, subject to the question of delay, the planning permission must be quashed.


27. The judge stated that:


I refuse permission to move for judicial review on the grounds of undue delay, or alternatively a want of promptness, and I refuse to extend time for so doing."


At paragraph 27 the judge stated:


For those reasons, I do not consider that the applications were made either promptly or, in respect of the one that was made outside, as I would judge it, the three month period (if one takes the resolution as the date) without undue delay, and I am not prepared, for the reasons which I have given, to extend time."


The relevant resolution was that of 6 December, which is more than three months before the present claim was made.

30. Since the judge's decision, the House of Lords in R (Burkett) v Hammersmith and Fulham LBC [2002] 1 WLR 1593 has had to consider the point whether, when the lawfulness of a planning permission is challenged, the grounds to make the claim arose, for the purposes of CPR 54.5(1), on the date when permission was actually granted or on the date of the local planning authority's resolution. It was held, reversing the Court of Appeal, that the relevant date was the date when permission was actually granted. The rule provides:


(1) The claim form must be filed --

(a) promptly; and

(b) in any event not later than 3 months after the grounds to make the claim first arose."


Mr Harwood, for the applicant, accepts that in the light of Burkett the judge was wrong to take the date of the committee resolution as the relevant date for the purposes of CPR 54.5(1). The relevant date is 26 January 2001, when the notice of planning permission was issued. The claim was made within three months of that date. The judge, however, went on to hold that even on that basis there was a "want of promptness". It was not and is not suggested in this case that the delay was a deliberate time-wasting tactic, but the judge held that by 12 February 2001, at the latest, the applicant knew that planning permission had been granted and there was nothing lulling the applicant into a false sense of security.

32. For the council, Mr Taylor seeks to uphold that decision and the reasoning of the judge. While the applicant was making enquiries of the council following the grant of planning permission, and it is accepted that there was delay in dealing with them, a claim form could and should have been filed, without waiting for the result of those enquiries.

33. In my judgment, the judge was, with respect, wrong in concluding that the claim had not been brought promptly in the circumstances. What the judge has left out of account is the comment he himself made when commenting on the lack of "a witness statement or material from the City Council which set out more explicitly what the basis for the decision was". The applicant acted reasonably in the circumstances in seeking by his letters of 25, 27 and 31 January and 10 and 13 February further information before commencing proceedings.

34. This was a case in which, for reasons given when considering its merits, a potential applicant for judicial review was entitled first to seek information from the council as to the procedures which had been followed. He could not know whether he had an arguable case. Had an explanation demonstrating a correct procedure been provided, the application would probably not have been made, at any rate in its present form. In the event, the applicant was not even told, as was the case, that the officers of the council had no recollection and that there were no surviving notes as to what had happened at the two committee meetings. It was only after the applicant had, in a a letter of 16 March 2001, mentioned an application for judicial review, that he received a response in which apologies were given for the delay. Such explanation as was given did not appear until a letter dated 4 April, and application to the court was made on 18 April. The letter purported to be a complete explanation of the procedures followed. It did not deal with the point now at issue and contained assertions which have not been -- and the council accepts could not have been -- supported by evidence. In my judgment the application should not have been refused for want of promptness.

"Promptly" and the Convention

35. Submission was also made by Mr Harwood on the basis of Burkett as to the effect, following that decision, of the presence in the rule of the word "promptly." Lord Slynn of Hadley stated:


The question of whether an obligation to apply 'promptly' is sufficient to satisfy European Community law or Convention rights as to certainty does not arise in this case and I do not comment on it."


Lord Steyn, however, stated that:


... there is at the very least doubt whether the obligation to apply 'promptly' is sufficiently certain to comply with European Community law and the Convention for the Protection of Human Rights and Fundamental Freedoms. It is a matter for consideration whether the requirements of promptitude, read with the three months limit, is not productive of unnecessary uncertainty and practical difficulty."


The doubt raised is not reasoned in detail.

38. The question whether the obligation is contrary to the Convention or to Community law was not resolved by the House of Lords, as Mr Harwood accepts, and has not been argued before this court. Mr Harwood wishes to keep open the possibility of it being argued in the House of Lords if the present appeal were to be dismissed. Unless and until the issue is resolved adversely to the rule, the obligation to file the claim form promptly remains a feature of English law, in my view, and the presence of the word " promptly" in the rule should not be ignored. Those who seek to challenge the lawfulness of planning permissions should not assume, whether as a delaying tactic or for other reason, that they can defer filing their claim form until near the end of the three-month period in the expectation that the word "promptly" in the rule is a dead letter.

39. Application of the promptness test does involve a judgment by the court which will depend upon the circumstances of the particular case. In Burkett Lord Hope (paragraph 64) recognised the principle which led to the presence of the word "promptly" in the rule:


On the other hand, it has repeatedly been acknowledged that applications in such cases should be brought as speedily as possible. Ample support for this approach is to be found in the well-known observations of Lord Diplock in O'Reilly v Mackman [1983] 2 AC 237, 280-281 to the effect that the public interest in good administration requires that public authorities and third parties should not be kept in suspense for any longer period than is absolutely necessary in fairness to the person affected by the decision; see also R v Dairy Produce Quota Tribunal for England and Wales, Ex p Caswell [1990] 2 AC 738."


Mr Harwood does, however, submit that the reasoning of Lord Steyn in Burkett , when preferring the date of the grant of permission to the date of the resolution, supports his submission as to the effect of the word " promptness" on the facts of this case. Lord Steyn, (paragraph 50) said that "the preparation of a judicial review application, particularly in a town planning matter, is a burdensome task". He referred (paragraph 45) to the fact that a challenge "may involve not only individual rights but also community interests, as in environmental cases." I respectfully agree that it may be appropriate to recognise the extent of the burden when considering whether an applicant has acted promptly. I also agree that challenges may affect community interests. The public interest in limiting the period of suspense when projects of value to the public, for example, are involved is also important. I do not consider that Lord Steyn's reasoning on the issue as to the relevant date bears significantly upon the judgment to be made by a court when assessing whether an application has been made promptly.


41. For the reasons given, permission to appeal is granted. We decide to exercise our power to deal with the application ourselves. The appeal is allowed and the planning permission is quashed.

42. LORD JUSTICE POTTER: I agree that the appeal should be allowed. On the question of promptitude, I would only add this. Since the decision of Ouseley J, the decision of the House of Lords in the Burkett case has established that the grounds for applications in a case of this kind first arise upon the actual grant of planning permission, and that therefore the issue of promptitude falls to be considered as from that time. In that respect, reference to paragraphs 20-26 of the judgment shows that the primary basis upon which the judge approached the issue of promptitude, namely to consider the time as running from the date of the earlier council resolution, was, through no fault of the judge, incorrect. Nonetheless, it is difficult to think that it did not colour his approach to the alternative basis upon which he considered the issue when approaching it as from the later starting-point now held in Burkett to be correct. I agree with Lord Justice Pill that the judge was wrong in the conclusion he reached in relation to that starting-point.

43. It is in principle clear that the public interest in good administration and the avoidance of possible prejudice to the interests of developers in principle demand prompt action on the part of an applicant seeking judicial review in respect of a planning permission once granted. That is the reason underlying both the content and form of CPR rule 54.5(1). However, such a requirement should not, in my view, oust the countervailing consideration that it is undesirable for a litigant to proceed blindly towards challenge of a decision in relation to which he suspects a fault or omission susceptible of review in a case where, for the purposes of clarification, he reasonably requires further information from the decision-making body so that he can consider in an informed manner whether proceedings are justified or worthwhile. Not only is he entitled to consider the wisdom of embarking on the trouble and expense of litigation from his own point of view, it is also undesirable that the machinery of litigation and the engagement of the court process be set in motion before there has been an effort to resolve the matter in pre-trial correspondence.

44. That is essentially what happened here. From the point of view of the council, they were not in principle refusing to supply the information requested by the applicant. They were merely delaying their reply in a situation where the applicant was, for lack of that information, in the dark as to the process or reasoning applied by the council. It was not until 4 April 2001 that, despite the applicant's several letters pressing for information, the council wrote a letter which, as its final paragraph expressly declared, was written to explain the planning processes involved. That letter stated -- incorrectly, as now appears from the further evidence -- that the planning committee considered the matter in accordance with the relevant planning policies. So far as the developers were concerned, there was no suggestion that they were in a hurry, or that their intended works were imminent; nor has it been suggested in these proceedings that any material prejudice was or would be caused by the applicant's delay in issuing proceedings within the three-month period provided for in CPR 54.5(1).

45. In my view, the judge was wrong in concluding that the applicants did not act promptly within the meaning of the rule. That being so, it is unnecessary to consider the doubts raised by the obiter dicta of Lord Steyn in the Burkett case as to whether the obligation to apply promptly, read with the three-month limit, is sufficiently certain to comply with European Community law and the Human Rights Convention, as to which Lord Slynn expressly refrained from comment. Such consideration will, in my view, better await on occasion where the substratum of fact gives substance to the outcome of the issue.

46. LORD JUSTICE JUDGE: I agree with both judgments. I add a few words of my own by way of emphasis, in particular in relation to the fresh evidence issue. I approach the question whether there is a reasonable explanation for Mr Young's failure to produce the evidence of the councillors who were members of the planning committee present at the meeting on 6 December as one of fact. Mr Young had no reason whatever to believe that the evidence of the councillors would or might undermine the council's own case about the decision-making process, or that they would or might advance a different, wider, factual context from that revealed by the minute of the meeting or the explanatory letter dated 4 April.

47. Local government would be driven close to collapse if every individual dissatisfied with a decision and proposing to challenge it by way of judicial review were expected to approach every councillor involved in the decision as a potential witness who might be prepared to support his application, rather than the decision of the council he was seeking to impugn. One can imagine without difficulty the complaints of impropriety and unfair pressure which would be advanced by the local authority, and the impossibility of sorting out all the consequent problems. What is more, lengthy evidence about each councillor's personal recollection, with the need for cross-examination about it if there were a dispute, would undermine the efficient running of the Administrative Court.

48. The starting-point surely is the minute which purports to reflect the council's decision and the reasons for it, together with any relevant letter or letters of explanation from the council. Both these documents (or, if there is more than one letter, all these documents) should be -- and it is reasonable to expect will be -- both honest, and accurate and complete at the time when they are made.

49. Here, since and in view of the reasons given by the judge for his decision, the relevant councillors have been approached and have come forward and explained that their attention was not directed to all the planning policies relevant to a properly-informed decision. This was fresh evidence, and in my judgment there is ample explanation for the absence of this evidence as part of Mr Young's case before the judge below.

50. In relation to the issue of promptness, I agree with the judgments of my Lords that, as a matter of fact, this applicant acted promptly in all the circumstances. It is therefore not necessary to set about a re-examination of the principles relating to promptness in the light of the observations expressed in the House of Lords in Burkett , and I expressly decline to do so.

51. Subject to these comments, which are largely repetitive, I agree with both judgments and with the order proposed by Lord Justice Pill.

ORDER: Application to admit fresh evidence allowed. Appeal allowed with costs here and below, summarily assessed respectively in the sums of £11,903.25 and £9,234.77.

(Order not part of approved judgment)