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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Malcolm, R (on the application of) v Harrogate Borough Council [2009] EWHC 1997 (Admin) (23 June 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1997.html Cite as: [2009] EWHC 1997 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		23 June 2009

Mr Justice Silber:

I Introduction

1. Mr Malcolm Grange challenges decisions made by an Inspector appointed by the Secretary of State for Communities and Local Government ("The Secretary of State"), dated 13 July 2007, dealing with White Wall Farm, White Wall Lane, Felliscliffe, Harrogate ("the appeal site").
2. There were two appeals brought in front of the Inspector. In the first, which is called "Appeal A", the claimant was appealing under section 174 of the Town and Country Planning Act 1990 ("the 1990 Act") as amended against an Enforcement Notice issued by Harrogate Borough Council ("the Council") in respect of the appeal site. The breach of planning control alleged in the enforcement notice was that without planning permission, there had been a change of use of the appeal site for mixed use for agriculture and for the stationing of a caravan. The claimant appealed against the enforcement notice under three provisions of Section 174(2) of the 1990 Act which, insofar as is material, provide that:

"An appeal may be brought on any of the following grounds…

b. those matters have not occurred;

c. that those matters (if occurred) do not constitute a breach of planning control…;

e. that copies of the enforcement notice were not served as required by section 172."

3. The Inspector varied the enforcement notice to specify that the stationing of the caravan was for residential purposes but he dismissed the claimant's appeal on other points. To understand the case it is necessary to explain the stationary landscape. The Town and Country Planning (General Permitted Development) Order 1995 (S1 1995/418) ("the 1995 order") in Part 5, headed "Caravan Sites", has a section entitled "Permitted Development". Paragraph A1 of it states that:

"Development is permitted by Class A subject to the condition that the use shall be discontinued when the circumstances specified in paragraph A.2 cease to exist, and all caravans on the site shall be removed as soon as reasonably practicable."

4. Paragraph A2 states that:

"The circumstances mentioned in Class A are those specified in paragraphs 2 to 10 of Schedule 1 to the 1960 Act (cases where a caravan site licence is not required), but in relation to those mentioned in paragraph 10 do not include use for winter quarters."

5. The 1960 Act, to which reference was being made in that provision, was the Caravan Sites and Control of Development Act 1960 ("the1960 Act"), and Schedule 1 of it is entitled "Cases Where Caravan Site Licence Is Not Required". The relevant provisions are set out in paragraphs 7, 8, 9 and 10 and they provide that:-

"7. Subject to the provisions of paragraph 13 of this Schedule, a site licence shall not be required for the use as a caravan site of agricultural land for the accommodation during a particular season of a person or persons employed in farming operations on land in the same occupation.

8. Subject to the provisions of paragraph 13 of this Schedule, a site licence shall not be required for the use of land as a caravan site for the accommodation during a particular season of a person or persons employed on land in the same occupation being land used for the purposes of Forestry (including afforestation).

Building and engineering sites

9. Subject to the provisions of paragraph 13 of this Schedule, a site licence shall not be required for the use as a caravan site of land which forms part of, or adjoins, land on which building or engineering operations are being carried out (being operations for the carrying out of which permission under Part III of the Act of 1947 has, if required, been granted) if that use is for the accommodation of a person or persons employed in connection with the said operations."

6. The Inspector concluded in respect of these matters in paragraph 22 of his decision letter:

"I conclude that there were substantial periods between August 2005 and May 2006 when the land was being used a caravan site but this use was not in connection with seasonal farming activities, forestry or building or engineering operations. During these periods, the use did not benefit from the permission granted by Part 5 of the GDPO. It was a breach of planning control and, because of this, the appeal on ground (c) fails."

7. The Inspector also rejected the appeal on the basis of grounds (b) and (e).
8. The second appeal, which is called Appeal B, was the claimant's appeal under section 78 of the 1990 Act against the grant of planning permission subject to conditions for the conversion of barn buildings at the appeal site to form a detached building. The basis of the claimant's appeal was that he disputed a number of the conditions. The Inspector allowed the appeal, deleting and varying some of the conditions.
9. The claimant now seeks to challenge the decisions in appeals A and B pursuant to Sections 289 and 288 respectively of the 1990 Act.

II Submissions on Appeal A

10. The claimant, who has appeared in person, put in a very detailed list of grounds of appeal, many of which were in very general terms. He has developed them at some substantial length and added to them in his oral submissions. I will go through the grounds on which he seeks to rely, although many of them are of a general nature. The first ground on which the claimant relies is that the Inspector failed to consider relevant matters. The claimant did not identify in any respect, in which the Inspector failed to consider relevant matters over and above a number of more specific points to which I will refer later and so this ground does not in itself assist the claimant. A second point that was made on a number of occasions by the claimant was that the Inspector was not properly qualified to deal with these matters. The basis of that submission related to what the claimant understood to be the degrees possessed by the Inspector. I am bound to say that, with no greater particularity, I am unable to accept or attach any weight to this assertion and I will now focus on the other submissions.
11. The third ground of appeal is that the Inspector made statements of fact, which he later denied. That related to a matter concerning cladding, but it does not appear to have relevance to the decision being challenged. It was also contended that the Inspector conferred with the local planning authority without the claimant's presence or knowledge. That allegation was unparticularised. The Inspector served a witness statement as long ago as March 2008, in which he said in paragraph 3(d) that he did not confer with the council without the claimant's presence or knowledge. The claimant has had a very long period of 15 months in which to put in a witness statement of his own challenging this. He has not done so. In those circumstances I have no hesitation in rejecting that complaint.
12. The fourth complaint of the claimant is that the Inspector erred in law in altering the "principal document". It seems that the challenge that was being made was that the Inspector did find that the wording of the notice was deficient because it did not state the use to which the caravan was put. The Inspector did however state that:

"It was agreed at the enquiry that its primary use was residential. I shall correct the notice accordingly. This will cause no injustice and I am satisfied that with this correction the notice is valid"

13. The response of Miss Sarah-Jane Davies on behalf of the Secretary of State is first to refer to section 176 of the 1990 Act, which gives the Inspector power to "a) correct any defect, error or mis-description in the enforcement, or b) vary the terms of the enforcement notice if he is satisfied that the correctional variation would not cause injustice to the appellant or the planning authority". By virtue of Section 173(1)(a) of the 1990 Act, an enforcement notice is required to state the matters which appear to the local planning authority to constitute the breach of planning control.
14. I accept her submission because in planning terms; there is no difference between the stationing of a caravan for storage purposes or stationing it for residential purposes. She points out that the rights under Part 5 of the 1995 Order read with the 1960 Act only apply to the use of caravans for the purpose of human habitation.
15. The Inspector explained in his witness statement that he did make the correction to the enforcement notice for the reasons set out in the decision letter and which I have just explained. He indeed amended the notice to specify the breach of planning permission alleged, which is a change of use of land to use for the mixed purpose of agriculture and as a site for stationing a caravan for residential use. The effect was therefore to narrow the effect of the enforcement notice. It was concerned with the use of the land for the stationing of a caravan for residential use only and not with the stationing of a caravan for storage use. The Inspector recorded that the parities had agreed that the primary use of the caravan was residential so he rightly formed the view that the amendment could be made without injustice to either party. Indeed, there is nothing that has been put forward which shows that this amendment caused any injustice at all and so the variation was lawful.
16. The fifth ground of challenge was that the Inspector erred in law in failing to take account of the claimant's argument about estoppel. That is incorrect as the position in respect of estoppel was as explained in paragraph 1 of the decision letter in this way:

"At the enquiry the appellant argued that the claimant was estopped from issuing the enforcement notice, alternatively that the notice was invalid for three reasons. The wrong booklet had been served on him with the notice. Incorrect information had been provided to the Chairman of the Planning Committee when he authorised the notice and the Council has misinterpreted conditions attached to the earlier planning permissions to develop these lands. Some of these matters may be of relevant to the appeals under grounds (c) and (e). However, they do not form the basis for estoppel. I am unaware of any act by the council which can be construed as precluding it from taking enforcement action."

17. The Inspector correctly identified the matters relied on by the claimant and in my view they did not form the basis of any estoppel. There is nothing to suggest that there was a statement which was relied on or which had influenced the way the claimant had behaved. In any event, it is settled law that the scope for the operation of estoppel in the planning field is very limited, as was explained by Lord Hoffman in R v East Sussex County Council ex parte Reproach (Pebsham) Ltd [2003] 1 WLR 348 at paragraph 35.
18. The sixth ground of challenge is that the Inspector erred in law in dismissing the claimant's appeal on ground (b) of Section 174(2) of the 1990 Act which is set out in paragraph 2 above namely that the breaches had not occurred. The planning Inspector said:

"There is no dispute that the caravan has been on the land. Although it is no longer there, as a matter of fact that land has been used for the stationing of a caravan for residential use."

19. The fact that the caravan was no longer there did not, of course, mean that the land had not been used for the stationing of a caravan for residential purpose. It must not be forgotten that the basis of an appeal under ground (b) is that the matters alleged in the notice "have not occurred". On the Inspector's finding of fact that a caravan had been stationed on the land for residential purposes, the test was not made out. There can be no ground for criticising his decision to dismiss ground (b).
20. The seventh ground of appeal is that the Inspector erred in dismissing the claimant's appeal on ground (e) of section 174(2) of the 1990 Act by failing to take account of the requirements of section 172 of the 1990 Act and the relevant rules and procedures. The Inspector dealt with that in paragraphs 5 to 8 of his decision letter, in which he explained that section 172 of the 1990 Act requires a copy of the enforcement notice to be served on the owner or the occupier, and any other person having an interest in the land being an interest which, in the opinion of the authority, is materially affected by the notice.
21. It seems that although the appellant's wife and children might have had some interest in the land as part of the estate of the claimant, they had no direct legal interest and they were not materially affected. The Inspector took the view that there was no requirement to serve the notice on them as he had no reason to believe that their interests had been prejudiced by not receiving personally a copy of the notice. In my view, there can be no effective challenge to this sensible and realistic approach by the Inspector. The claimant also complained that he had not been served with the information booklet but the Inspector had recorded providing the booklet. In any event there is no evidence of prejudice.
22. An eighth ground of challenge is that the Inspector erred in law in failing to effect service of the enforcement notice as varied by him. As I have indicated, he did vary the notice, but it is settled law that there is no requirement to serving an enforcement notice when it has been varied by an Inspector pursuant to section 176 of the 1990 Act. Miss Davies drew my attention to the case of Macefield v Taylor [1987] GPL 721, in which the Divisional Court had to deal with a number of questions on a case stated, one of which was:

"…whether it is necessary to serve an amended enforcement notice where the amendments are made by the Secretary of State in the course of the appeal and are well known to all parties."

23. The answer given by Mann J, who gave a judgment which Watkins LJ agreed, was that it was not necessary because there was no provision in the Act or the Rules relating to enforcement notice appeals which required re-service. It was pointed out the structure of the 1990 Act was simply that the notice was served. If there was an appeal, the notice might be amended, but it was the same notice and no re-service of the notice as amended was requisite. By parity of reasoning, the challenge on this point has also to be rejected. In any event there is no evidence of any prejudice to the claimant.
24. The ninth submission that has been made by the claimant was that the Inspector erred by finding that an agreement on use had been reached when it had not. It would appear that this relates to the point concerning paragraph 2 of the notice to which I have already referred. Indeed, as the Inspector explained in his witness statement which has not been challenged in any witness statement from the claimant, he said:

"The appellant here refers to the use which the caravan was put. I checked the notes of the enquiry and the appellant stated that its primary use was residential with some storage at time hence my conclusion at paragraph 2 of my decision letter."

This assertion, which was made in a witness statement made more than a year ago, has not been challenged by the claimant although he has had much time to do so.

25. A slight variation of a submission which was made earlier was the claimant's tenth submission, which is that the Inspector erred in law by varying the enforcement notice in that this caused injustice. This, as I understand it, refers again to what is said in paragraph 2 of the decision letter. It is noteworthy that the claimant was unable to identify any injustice caused to him, and it also seems that the claimant's evidence was totally consistent with the change that was made, namely that the caravan was used primarily for residential purposes.
26. The eleventh ground of appeal is that the Inspector erred in finding that the claimant withdrew his appeal on ground (d) of section 174 of the 1990 Act of the inquiry when it had been withdrawn earlier. In my view, this is a totally immaterial assertion as to when it was withdrawn. It is of no relevance whatsoever in determining the appeal because it is common ground that ground (d) had indeed been withdrawn and so when it was withdrawn is irrelevant.
27. The claimant then contends in his twelfth ground of challenge that the Inspector erred in law in muddling the evidence regarding the dates of siting of the caravan. He points out, for example, that in paragraph 13 the Inspector talks about the claimant having taken a hay crop in 2005 and 2006. He says it was in late June and July and that he did the work himself using old-fashioned machinery and for a period of about 8 weeks. Thus the claimant says that that must have gone into August, because if you calculate 8 weeks from late June that must take the matter into August.
28. It must not be forgotten that the Inspector's decision can only be quashed on the basis of an error of law. The findings can only be challenged if they are perverse or irrational. The Inspector did deal with the evidence about the dates the caravan was on the appeal site at paragraph 9 of his decision letter where he sets out, systematically and clearly, evidence that was open to him on the basis of the evidence which was adduced. It is a clearly reasoned decision, which led to the conclusion in paragraph 22 which I have already stated in paragraph 6 above.
29. There are a series of assertions (which constitute the thirteenth ground of challenge) that the Inspector erred in law is basing his findings on a lack of evidence, on possibility and/or probability. There is no challenge to the submission made by Miss Davies that the burden of proof on an appeal against an enforcement notice is on the appellant to establish, on the balance of probabilities, that there is no breach of planning control: (see Hill v SSTLGR [203] EWCA Civ 1904 at paragraph 47). It follows that it is for the claimant and not the Secretary of State to prove, on the balance of probabilities that when the caravan was on the appeal site, it benefited from the rights under the 1995 order, as he claimed. It is clear from paragraph 14 of the decision letter that the Inspector accepted that, during some discrete periods when the claimant was engaging in tree-planting, the use of the caravan for his accommodation would have been permitted by the 1995 order. Nevertheless he rejected the contention that at other times the caravan benefited from permission by virtue of its use for accommodation of a person employed in connection with building or engineering operations as he explained in his decision letter.
30. Having read carefully the findings of the Inspector, I am quite satisfied there is nothing in them which suggests that the Inspector did not correctly apply the civil standard of proof, and no deficiency is pointed to. There is no need for the Inspector to recite the standard of proof and there is nothing in what he said which is inconsistent with it.
31. That leads on to the fourteenth complaint, which is that the Inspector erred in law in failing properly to take account of the claimant's engineering and building operations and other operations in agriculture and forestry. These were dealt with very carefully when the Inspector carefully appraised the evidence that was before him. He accepted some of the evidence of the claimant, such as that, during discrete periods when he was taking the hay crop and planting trees, his use of the land as a caravan site would have been permitted by the 1995 order but he rejected some parts of it. There is no challenge, as well, to the fact that the Inspector recorded what is permitted by the 1995 order at paragraph 11(iii) of the decision letter or the way he analysed the claimant's evidence and his observations on the work that had been carried out to the building adjacent work. The Inspector noted, in paragraph 16 of his decision letter, that much of the work had taken place before the caravan had been brought on to the land. Furthermore, in that paragraph, he said that the claimant had undertaken all the work himself, mainly using hand tools and spending only £28 on materials. It was said that sometimes the work had been full-time and sometimes for short periods while at other times it had been less intensive and had constituted little jobs here and there. There were also periods when no work was done.
32. The Inspector referred to the regular maintenance and improvements and minor alterations which were often undertaken by occupiers as part of their normal activities. The 1995 order, when read with the 1960 Act, is concerned with caravans used for the accommodation of persons employed in connection with building or engineering operations. The Inspector concluded the work done between June 2005 and September 2006 (i.e. when the caravan was stationed on the land) was largely made up of a series of small jobs. Many of those could properly be described as maintenance or repairs but crucially no significant building or engineering operations were undertaken. Therefore the site did not benefit from the permitted development rights. In any event, even if the Inspector had taken the view that such rights were triggered by the nature and scale of the works carried out, the Inspector held that they would have existed only while the works were under way. He noted that there were periods during June 2005 and September 2006 when no work was going on. So, it was open to him in paragraph 20 of his decision letter to find that, even allowing time for the expeditious removal of the caravan when the work ceased, as required by the 1995 order together the 1960 Act, there was almost certainly substantial periods when the presence of the caravan was unconnected with any activity on site.
33. In my view, this was a matter of judgment for the Inspector, having seen the works on site and having heard the evidence as he had, to form a view whether the works satisfied the tests necessary to enjoy the permitted development rights. He formed the view, as the designated fact-finder, that they were not and that was a conclusion open to him. In any event, even if the Inspector had reached a contrary view, he would have had to conclude, as a matter of fact, that there were many periods when the presence of the caravan was not connected with any activity on the site and could not benefit from the permitted development rights. The grounds of challenge put forward by the claimant were frequently just disagreements with factual conclusions, but they do not permit him to succeed in his challenge. The stark fact is that the Inspector was entitled to reach the conclusions which he did and again there is no error of law.
34. A fifteenth criticism made by the claimant was that the Inspector erred in law in failing to take account of works allowed under the 1995 order, (namely building and engineering operations) in connection with the rights granted under the 1960 Act. That is a point which I have already covered, and I am satisfied that the Inspector did not fail to take those rights into account. He considered, as he was bound to, the arguments of the claimant, but he rejected those, for the reasons which I have explained.
35. The final complaint that was made by the claimant in respect of Appeal A was that the Inspector failed to take account of the fact that the caravan was sited for two permitted storage purposes. No basis for this contention was put forward by the claimant in the grounds of appeal. No evidence was shown of such storage or that there was before the Inspector or any adequate argument given before the Inspector as to why storage use was permitted. For those reasons I reject the challenge on Appeal A.

III Submissions on Appeal B

36. The first ground of appeal was that the Inspector failed to take into account correspondence regarding conditions. This relates to a letter of 27 November 2006 sent by the Council to the claimant. It is a letter on which the claimant attaches great importance, and so I will quote it in full:

"As you know Members of the Planning Committee resolved to refuse this application on 21 November 2006. As this was contrary to the planning officers' recommendation, the application will now be considered by the District Development Sub-committee on 30 November 2006.

At the meeting on 21 November 2006, the Committee noted its comments in your fax dated 20 November. This stated you wanted the application to be considered on the basis of the original plans, i.e. the informal paddock area to the front. However this fax was not received until after the Committee meeting had started at 2pm on 21 November. Accordingly the Committee was not obliged to consider the contents of this fax, and the application was considered on the basis of the amended plan which you signed on 27 October 2006, which excluded the paddock. The District Development Sub-Committee will also consider the application on the basis of this amended plan."

That is the basis upon which it was dealt with by the council.

37. The disputed Condition 2 states that:

"The development hereby permitted shall not be carried out otherwise than in strict accordance with the submitted details, as amended by the attached plan received by the council of the borough of Harrogate on 27 October and modified by the conditions of this consent."

38. The Inspector dealt with this matter in paragraphs 24 and 25 of his decision letter, when he said that:

"24. This condition essentially requires the appellant to carry out the development for which he sought planning permission. Although he claims he was pressurised into making the change, there is no dispute that prior to the Council's determination of his application, he reduced the area of the land affected by it. He now wishes to revert to the larger area he originally intended.

25. The permission relates only to the development as proposed at the time of the decision. Removing the condition would not alter this or allow the permission to apply to a larger site. Strictly speaking, the condition is not necessary. However, I consider that it should be retained to make the position clear."

39. The decision letter goes on to that that:

"26. Substituting an alternative condition with the effect of enlarging the site area would make the development substantially different from that comprised in the application when it was permitted. That would be inconsistent with advice in para 84 of Circular 11/95 The Use of Conditions in Planning Permission. As was made clear in an earlier appeal decision…, enlarging the site would affect the impact the development on the character and appearance of the area. It might also raise matters on which neighbours or other interested persons may wish to comment."

40. In my view, the Inspector was entitled to look at the planning application as it stood when it was determined. There is no suggestion that any evidence was put before the Inspector to show that he should deal with it differently. There is also the important point that to insert an alternative condition would mean that it would be a different development, and so it might raise matters on which any interested parties would wish to comment. It is noteworthy that the claimant did not identify any correspondence which the Inspector failed to consider.
41. I stress again the point I made to the claimant, that if he wishes this planning matter to be looked at in a different way, then he can make a fresh planning application.
42. The next submission that is made by the claimant is that the Inspector failed to take account of Circular 11/95, but, as I have just explained, he did refer, in paragraph 26, in a passage that I read out, to the wording there.
43. Another submission was that the Inspector erred in law by retaining a condition he found not to be "necessary". He was plainly aware of the need for the condition to be "necessary" and he refers to that in paragraph 25. It is true that he did say that: "strictly speaking, the condition is not necessary", but crucially he then goes on to state that it should be retained to make the position clear. In my view when the decision letter is read as a whole in a common-sense way, it is clear that he did consider it to be necessary on a practical basis. In my view it was quite clear what he was dealing with.
44. During the course of his submissions, the claimant put in a number of documents, to which I should briefly refer. One of those documents was an article called "Caravan and self-builders", which comes from a publication which I have not been able to identify but it refers to a case called Adams v Shady (25 March 1985), which was a decision of the Divisional Court, which had to consider whether there was evidence before some justices entitling them to come to a conclusion about the use to which some land was being put. The respondents had been prosecuted.
45. The justices had found that, prior to the making of the purchase of the land, planning permission had been obtained for the erection of a semi-bungalow, but on the site at the time was a caravan that had been used by the previous owner. It was unoccupied for some three years, with the result that it had become overgrown. The respondent set about getting rid of the rubbish. An officer from the local council who went to the site saw no evidence of the building site. There was an issue for the Magistrates Court and then for the Divisional Court as to whether there was evidence to conclude that the respondent was at that time using it for the purposes of an exemption.
46. In my view, there is nothing to be gleaned from the Adams case which is of any relevance to this case as it was a fact-sensitive decision. In any event, I would be deeply concerned about relying on a case such as that of which there is no proper law report available. In any event from what I have seen of it, there is nothing of any assistance.
47. The other document that was put in and to which I must refer is a document headed "White Wall Farm", which states that:

"In January 2004 Mr Graves submitted a planning application for the 'Conversion of a former agricultural accommodation to form Class B1 (office, research and/or light industrial use) with ancillary covered parking, kitchen, canteen, toilets, washrooms, restrooms and storage."

48. It is clear that that document was used in relation to the removal of Condition 11, which the Inspector agreed to. The claimant sought to rely on this as assisting him on the present appeal. In my view it does not. There was no ground of appeal in front of the Inspector relating to it. There is nothing to suggest that he was asked to or did consider it. That would be sufficient, to my mind, to ensure that he could not benefit from this document. In any event, if it had been before the Inspectors, Miss Davies said, he might have said that the B1 use had not been implemented. In any event, that would not have permitted the type of use which is being sought in this particular case.

IV Conclusion

49. Having taken account of all the submissions that have been put forward carefully by the claimant, I have come to the conclusion that these appeals have to be dismissed. He will bear in mind what was said about the fact that there might well be a new planning application possible for him to deal with the different site area from that which was considered by the planning committees and by the Inspector.
50. For all those reasons this application must be dismissed.

MISS DAVIES: My Lord thank you. Formally, I think that means that permission has to be refused under section 289 and section 288 and the claim is dismissed.

MR JUSTICE SILBER: Yes.

MISS DAVIES: My Lord, I do have an application for costs.

MR JUSTICE SILBER: Have you served the schedule?

MISS DAVIES: I have served a schedule, yes. It was sent by Miss Barber to Mr Grange on what date…

MR JUSTICE SILBER: Have you received this?

MR GRANGE: No.

MISS DAVIES: Has a copy reached your Lordship as well?

MR JUSTICE SILBER: No.

MISS DAVIES: No.

MR GRANGE: Well, what I would say about that from the little I know about things, I believe statements of costs should be with the claimant and opposite party (inaudible)…

MR JUSTICE SILBER: Yes.

MR GRANGE: And this clearly has not been.

MR JUSTICE SILBER: No.

MR GRANGE: And so of course on that basis I would invite you to dismiss any such claim, certainly today.

MR JUSTICE SILBER: When was the letter sent?

MISS DAVIES: 22 June, my Lord.

MR JUSTICE SILBER: First class?

MISS DAVIES: Yes, first class.

MR JUSTICE SILBER: Registered post?

MISS DAVIES: Just ordinary first class post, my Lord.

MR JUSTICE SILBER: I have been up here but the stories I have been getting from my wife is that there is a postal strike in London. I do not know if there is. If he says he has not got it, there is not much we can do about it.

MISS DAVIES: Would your Lordship consider allowing Mr Grange an opportunity to look at it now and then make some points on it to save us…

MR JUSTICE SILBER: Well, do you want to do it? You are entitled to 24 hours.

MR GRANGE: Well, quite. This is an office with substantial resources, the whole resources of the country behind it.

MR JUSTICE SILBER: I am not quite sure it has got as much as that. I think they would like to have it but they do not. In fact, do you want…you have got the right to 24 hours?

MR GRANGE: Well I would like you to dismiss it.

MR JUSTICE SILBER: Well, I think the alternative is either I quantify it or I just make an order for assessment to be done in the ordinary way.

MR GRANGE: What does that mean?

MR JUSTICE SILBER: It means it will not be dealt with today and will have to be dealt with …

MR GRANGE: I would rather have the chance to look at it and make comment.

MR JUSTICE SILBER: Well, I am afraid you are stuck on that are you not, Miss Davies?

MISS DAVIES: Well, my Lord, obviously if it goes off for a detailed assessment that in itself carries some cost implications for Mr Granger.

MR JUSTICE SILBER: He will appreciate that. Unless you can prove it was sent, it is difficult.

MISS DAVIES: It was plainly sent my Lord. I mean, Miss Barber who sits beside me has got a copy of the letter.

MR JUSTICE SILBER: But I just do not know, but I have not been in London but I gather the post…my wife complains that the post is not coming through.

MISS DAVIES: I mean, as Miss Barber points out, all the other documents have been received that have been sent recently. The skeleton arguments and so on.

MR JUSTICE SILBER: I simply cannot disbelieve Mr Grange. Some letters get through as we know, some do not, Miss Davies.

MISS DAVIES: Indeed. Unfortunately it never occurred to me that it had not got through, otherwise I would of course have handed him another copy this morning.

MR JUSTICE SILBER: That would not have helped you. That would not have helped you.

MISS DAVIES: He might at least have had the opportunity of looking at it. (inaudible) goes off to detailed assessment.

MR JUSTICE SILBER: You would have had to go and see him last week. Somebody would have had to have dropped it in. I am sorry but I am not prepared to… if he says he has not got it, I think that is the answer.

MISS DAVIES: Will your Lordship therefore order in principle that Mr Grange is to pay the Secretary of State's costs?

MR JUSTICE SILBER: Yes, I think that must follow, that you must pay the costs to be assessed, Mr Grange.

MISS DAVIES: Would your Lordship say to be assessed if not agreed?

MR JUSTICE SILBER: Yes. If you can agree, so much the better.

MR GRANGE: Yes, well, I will put something (inaudible).

MR JUSTICE SILBER: Good, thank you very much indeed.