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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 >> Dacorum Borough Council, R (on the application of) v Secretary of State for Communities and Local Government & Anor [2009] EWHC 304 (Admin) (29 January 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/304.html Cite as: [2009] PTSR CS33, [2009] EWHC 304 (Admin), [2009] JPL 1317

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

		Royal Courts of Justice Strand London WC2A 2LL
		29th January 2009

1. MR JUSTICE CRANSTON: This is an application which concerns the interpretation of paragraphs 3.4 and 3.6 of Policy Planning Guidance 2, Green Belts (1995)("PPG2") and Policy 22 of the Dacorum Local Plan, promulgated in 2004. The issue revolves around the appropriateness under these provisions of extensions to buildings in the Green Belt. The Secretary of State for Communities and Local Government's inspector adopted an interpretation which the Local Planning Authority, Dacorum Borough Council ("the Council"), challenges. It does this by means of an application under section 288 and an appeal under section 289 of the Town and Country Planning Act 1990. In a decision dated 2nd June 2008, the Inspector had allowed an appeal, in part, under section 174 of that Act and granted planning permission for a conservatory at the property of the second and third defendants, the Hutchinsons. The Secretary of State for Communities and Local Government has consented to judgment. I understand that the outcome of a number of other planning applications turns on the result in this case.

Background

2. The background is that in 1989 planning permission was granted allowing the demolition and replacement of two pre-existing buildings on a site, within both the Green Belt and a conversation area, off Dunny Lane in Chipperfield. The two buildings were the Thatch and St Anne's Cottages. The Hutchinsons bought the land with the benefit of those permissions. They demolished both buildings and built new buildings in their place. No issue arises in respect of the replacement for St Anne's Cottage. It is in relation to the replacement building for the Thatch that the present application arises.
3. At this stage it is relevant to note that the replacement building for the Thatch would have been sited near the Dunny Lane frontage but ultimately it was built some 68 metres away from the lane. The Council had refused permission for the new building in that position, but ultimately planning permission was granted on appeal consenting to that development. There is no need to go into the full history of the building which replaced the Thatch. It deviated slightly in design but ultimately, in 2000, retrospective planning permission was granted for the retention of the building as it had been built. The floor area of the original building of the Thatch was 90 square metres but the floor area of the permitted replacement was 145 square metres.
4. Some time after 2000, the Hutchinsons built three structures for the Thatch: a conservatory, a shed and a car port. The floor area of the conservatory is some 12 square metres. In 2006, three separate applications were made for planning permission to retain those structures, but the Council refused. In essence, the Council said that, as guided by PPG2 paragraphs 3.4 and 6 and Policy 22 of the Local Plan, the new structures were to be judged by comparing their size with the size of the original Thatch cottage and not by reference to the size of the replacement building.
5. In February 2007, three appeals were lodged against the Council's decision. All of these were dismissed, the Inspector's decision being premised upon assessing the size and the percentage increases in size of those structures in relation to the original building of the Thatch and not the existing replacement building from 2000. Rather than appealing against the Inspector's decision, the Hutchinsons decided to wait to see whether the Council would initiate enforcement proceedings. It did, and on 4th January 2008 served an enforcement notice. That was appealed and an inspector was appointed. The appeal in respect of the conservatory succeeded but the appeals in respect of the shed and the car port were dismissed. No further issue arises in relation to the latter two appeals.
6. After describing the appeal site, its surroundings and its recent planning history, the Inspector said that, from his inspection of the site and the surroundings, the main issue was whether the development amounted to inappropriate development within the Green Belt and, if so, whether other material considerations were sufficiently clear to outweigh any harm from that inappropriateness. He said that he would have regard to policies 4 and 22 in the Local Plan and he would also have regard to government advice in PPG2. He then went on to say at paragraphs 5 to 9 of his decision letter:

"5. ... The Council and the Appellants' agent disagree about the correct interpretation of the adjective 'original' in paragraph 3.6 of PPG2. The Council maintain that the adjective refers to the previous dwelling on the appeal site which has been lawfully replaced by the existing dwelling ... (T)he Appellants' agent maintains that the adjective refers to the present replacement dwelling ... I shall assume for the present purpose that the Council's reference to the 'original dwelling' in Policy 22 has the same meaning as the reference to the 'original building' in paragraph 3.6 of PPG2.

6. I acknowledge that, in paragraph 7 of another Inspector's appeal decision issued on 28 December 2001 ..., relating to a proposed conservatory at the present appeals dwelling, he clearly interpreted the phrase 'original dwelling' as a reference to the previously-existing dwelling on the site. However, there is no indication in that appeal decision ... that relevant judicial authority was cited to the Inspector during the appeal process.

7. In my opinion, the relevant judicial authorities in the present case (both of which are cited in the Agent's letter of 10 April to the Inspectorate) are those of Judge Rich QC in the case of Brentwood BC v Secretary of State for the Environment (Transport and the Regions) (SSETR) & Churley, and of Deputy Judge Nigel McLeod QC in the case of Ascot Wood Limited v SSETR & Runnymede BC. Both cases are briefly referred to at page 50028/21 of the Encyclopaedia of Planning Law and the latter case was summarised in JPL [2000] 844-845. In the former case the Judge held that comparison with the original habitable floorspace of the dwelling did not take the decision-maker back to the original habitable floorspace of a dwelling that no long[er] existed because it had been replaced. In the latter the Deputy Judge concluded that another Inspector had failed to take into account the approach of three colleague Inspectors who had held that the 'original building' in PPG2 referred to the existing building on the site (before any extension to it) rather than some pre-existing building which had been replaced.

8. I have also considered the submission in paragraph 6.20 and 6.21 of the Council's statement. As to the previous Inspector's decision on 24 July 2007, there is no evidence that relevant judicial authority was cited to him, or that he needed to consider such authority, because it appears that it was common ground between the Council and the Appellant that the 'original dwelling' had a gross floor area of 90 sp.m. As to the Council's submission (paragraph 6.21 of their statement) that it would be absurd to regard the replacement dwelling as the original dwelling because it would enable excessive dwellings, each enlarged by 30%, to be built in accordance with the Local Plan Policy, I consider this submission is misconceived for two reasons. First it seems to me most improbable that, within a comparatively short time, a developer or house-owner would deliberately demolish successive habitable dwellings in order to achieve an increased floor area of 30% on each re-building. Secondly, I consider that the financial costs of successive demolition and re-building would be disproportionately high in relation to any gain.

9. Accordingly, I conclude that the Council's use of the adjective 'original' in sub-paragraph (e)(i) of Local Plan Policy 22 is intended to correspond exactly to the meaning of 'original in paragraph 3.6 of PPG2; and the better view, based on relevant judicial authority interpreting this adjective, is that it refers to an existing building, including a replacement of an earlier building."

Then in paragraph 10 the Inspector applied his interpretation of PPG2 and Local Policy Plan 22 to the conservatory. It fell within the 30 per cent threshold when compared with the existing Thatch cottage. Thus he granted planning permission for its retention and allowed the appeal in that respect.

The issue

7. The Council invite me to quash the Inspector's decision in relation to the conservatory. They contend that there is an error of law enabling me to do that. It is trite law that if there has been an error of law on the part of the Inspector I can quash the decision. In considering whether to do that, I must construe the Inspector's decision in a reasonably flexible manner. I must read his decision in good faith and I must also recognise that there is no need for him to address every material consideration; in other words that he needs only to refer to the main issues in dispute. Moreover, the exercise of planning judgment and the weighing of the various matters are a matter for him. Finally, I must have regard to the proposition that, if there is a dispute concerning the meaning of words included in a policy document which he is bound to take into account, I cannot interfere if the wording is properly capable of more than one meaning and he has adopted and applied a meaning which as a matter of law that policy is capable of bearing. R v Derbyshire County Council, ex parte Woods [1997] JPL 958 is a leading authority. Brooke LJ said this:

"If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (see Horsham DC v Secretary of State for the Environment [1992] 1 PLR 81, per Nolan LJ at p 88). If there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases be material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law" (at 967).

8. At this point it is necessary to refer to the exact wording of PPG2 and Local Planning Policy 22. The relevant aspects of PPG2, paragraphs 3.4 and 3.6, read as follows:

"3.4 The construction of new buildings inside a Green Belt is inappropriate unless it is for the

following purposes:

...

Limited extension, alteration or replacement of existing dwellings (subject to paragraph 3.6 below)..."

"3.6 Provided that it does not result in disproportionate additions over and above the size of the original building, the extension or alteration of dwellings is not inappropriate in Green Belts. The replacement of existing dwellings need not be inappropriate, providing the new dwelling is not materially larger than the dwelling it replaces. Development plans should make clear the approach local planning authorities will take, including the circumstances (if any) under which replacement dwellings are acceptable."

Policy 22 of the Local Plan is worded thus:

"22. ... The extensions of existing dwellings will not be permitted unless:

...

(e) The extension is limited in size.

Criterion (e) will be judged according to:

(i) ...

• Within the Green Belt the resulting building (including any earlier extensions and alterations or replacement) should be less than 130% of the floor area of the original dwelling..."

That policy is subject to an explanatory text:

"22.2 The original dwelling house means:

• Either the dwelling that existed on the site on 1 July 1948; or

• If there was no dwelling on that site at that time, the first dwelling built after that date, as it existed when first built.

22.3. The Policy therefore takes into account the aggregate sized and cumulative impact of extensions on the openness of the Green Belt and the Rural Area, whether the current dwelling is the original dwelling on the site or not."

9. There have been two decisions relevant to the meaning of PPG2, paragraphs 3.4 and 3.6. The first is Ascot Wood Ltd v Secretary of State for the Environment, Transport and the Regions [2000] PLCR 265. The claimant in that case, Ascot Wood, sought to quash the decision of the Secretary of State's planning inspector that the construction of a single garage and store would constitute inappropriate development in a designated Green Belt contrary to the relevant structure plan and local plan. The house occupying the site since the 1950s had been demolished and replaced, with planning permission, by a much larger dwelling. The Planning Policy Guidance and the Local Plan (which was almost at the point of completion) required consideration to be given to the size of the original building. The Inspector interpreted that as the property which had been demolished and not the building which was in the course of construction. The claimant argued that the Inspector had been incorrect in identifying the original building on the basis that an addition could only be an addition to what was already there. The Deputy Judge said this:

"23. I am not able to accept Mr Caws' contention that the words are incapable of referring back to the first building on the site. While I am of the view that there are very compelling reasons for accepting Mr Caws' interpretation, I consider that there is just sufficient ambiguity in paragraph 3.6 to exclude me finding that the words are incapable of bearing a meaning which goes back to the first building on the site."

So the learned Deputy Judge did not come to a definite conclusion as to the interpretation of paragraph 3.6 of PPG2, although he certainly leant in favour of the interpretation advanced on behalf of the Hutchinsons.

10. The second relevant decision, a few months earlier, was given by HHJ Rich QC, sitting as an Additional Judge of the Queen's Bench Division. That case, Brentwood Borough Council v Secretary of State for the Environment, Transport and the Regions, unreported, 17th September 1999, involved the interpretation of PPG2 but also of a local plan provision, policy GB7. The latter dealt with extensions of dwellings in the Green Belt and read as follows:

"THE EXTENSION OF DWELLINGS WITHIN THE GREEN BELT WILL BE RESTRICTED IN SIZE. THE TOTAL SIZE OF THE DWELLING AS EXTENDED WILL NOT NORMALLY EXCEED THE ORIGINAL HABITABLE FLOORSPACE BY MORE THAT 37 SQUARE METRES."

The text of the policy was then followed by an explanatory note:

"As a matter of clarification, the 'original habitable floorspace' of older dwellings relates to the floorspace or property as existing on the first appointed day of the Town and Country Planning Act (i.e. 1st July 1948)."

The learned judge said in relation to PPG2 that he would come to no final conclusion. He said this:

"I think it may be a matter of doubt whether 'original building' in this context meant, in the case of replacement, the building as [was] replaced, or referred back to some preexisting building. I do not, however, investigate that matter further, because it seems to me that the Inspector would have been entitled, having regard to the development plan, to apply the PPG by reference to the replacement dwelling rather than the preexisting dwelling in accordance with the development plan, as I have construed it."

Earlier in his judgment the learned judge had addressed the interpretation of the local plan. In relation to that he said:

"In my judgment, a comparison with the original habitable floor space of a particular dwelling proposed to be extended, means the original habitable floor space of that dwelling disregarding (except in regard to pre-1948 buildings) any extension thereof. It does not take one back to the original habitable floor space of some dwelling which no longer exists because it has been replaced."

In my view, it is clear from that passage that the learned judge's decision turned very much on the wording of that local policy. It was a policy which expressly defined floorspace but only for buildings which had been there in 1948.

The Hutchinsons' case

11. With his characteristic skill, Mr Stinchcombe sought to resist the Council's challenge on a number of grounds. First, he submitted that when paragraph 3.6 of PPG2 states that provided an extension "does not result in disproportionate additions over and above the size of the original building, the extension and alteration of dwellings is not inappropriate in Green Belts", the word used, namely "original", must apply to the existing building referred to in paragraph 3.4. In other words, it refers to the building which it is actually proposed to extend, as it was originally built. In his submission, "original" cannot refer to some pre-existing demolished building which has since been replaced by that existing building. In his submission, that followed both as a matter of a literal and a purposive interpretation of the two relevant paragraphs of PPG2. As to the former, where an earlier building has entirely been replaced, it cannot be extended or altered as a matter of fact since it has been demolished and it is no longer there. It is simply incapable of being either extended or altered. In terms of policy, Mr Stinchcombe contended that any other interpretation of PPG2 would require impossible judgments to be made, necessitating an assessment of proportionality of the proposed extension as against a building which did not exist and in respect of which there may not be any record. Accordingly, he contended, the correct interpretation of the words "original building" in paragraph 3.6 of PPG2 is that they must mean the building which it is proposed to extend, in other words the existing building as it was originally built and not some previous building which had been demolished or replaced by that existing building.
12. I cannot accept that submission. In my judgment, PPG2, paragraphs 3.4 and 3.6, contain references to two different concepts. The first concept is of structure, the second of size. Paragraph 3.4 refers to the construction of new buildings inside a Green Belt being inappropriate unless it is for the purpose of a limited extension, alteration or replacement of an existing dwelling. That is the concept of structure. Paragraph 3.6 then addresses a different concept, that of the size of the structure which is or is not appropriate. For extensions or alterations, disproportionate additions are measured in terms of their comparison with the size of the original building. In relation to a replacement of an existing dwelling, its size needs to be considered in the light of whether it is materially larger than the dwelling it replaces.
13. Use of the word "original" in the first sentence of 3.6, as opposed to use of the word "existing" in paragraph 3.4 and the second sentence of paragraph 3.6, is in my judgment intentional. The drafter of paragraph 3.6 goes out of his or her way to emphasise that difference by italicising the word "original" to distinguish it from "existing". In my view, there is no law or policy reason against that interpretation. As to the law, the judges in the Ascot Wood and the Churley cases did not finally decide the matter, although I must concede that the learned Deputy Judge in the former was strongly inclined against my view. As to policy, I am not persuaded that it points in the direction which Mr Stinchcombe advocates. It may be that occasionally there will be a lack of plans when an original building has been replaced, but in my view that should not provide insuperable barriers to the interpretation I have suggested. In any event, there is a policy reason in favour of the interpretation which I adopt. That is set out on the Council's behalf in the case before the Inspector. In essence the Council envisages a scenario where there could be a series of replacement dwellings. As the cycle continues the increase in size would continue, thus undermining the size limitations in the policy. Mr Stinchcombe says that that is a theoretical possibility. In my view it is no more theoretical than the suggestion that there may not be plans available in relation to an original building.
14. Mr Stinchcombe's second submission was that the words in the policy are capable of bearing the interpretation which he advances. Because of that, in accordance with R v Derbyshire County Council, the Inspector's approach is unimpeachable as a matter of law. The Ascot Wood case and the Churley case held that there was an ambiguity in the meaning of PPG2 and, given that, the interpretation the Inspector adopted was open to him. He was entitled to adopt that interpretation and then to interpret policy 22 of the local plan in conformity with it. In particular, he was entitled to take the view that policy 22 and paragraph 3.6 of PPG2 were concerned with the same substantive issue. It therefore followed that if the Inspector's interpretation of paragraph 3.6 was an interpretation which the words were plainly capable of bearing, likewise his interpretation of paragraph 22 was open to him.
15. In relation to the explanatory text to Local Policy 22, that did not require a different interpretation to that which the Inspector had given to the policy in conformity with his interpretation of paragraph 3.6 of PPG2. In Mr Stinchcombe's submission, once the words "original dwelling" in policy 22 were construed to mean the original building if it had not been replaced, or the replacement building as originally erected if the original building had been replaced, that did not enable the cumulative impact of successive extensions to be taken into account as the explanatory text required. In any event, Mr Stinchcombe did not accept that the Inspector had left out of account the explanatory text to Local Policy 22. He pointed, for example, to the references in the Inspector's decision letter to paragraphs 6.20 and 6.21 of the Council's Statement before him, which implied in his submission that the Inspector must have had regard to the explanatory text. It was unlikely, in Mr Stinchcombe's submission, that the Inspector was not aware of the explanatory text. After all, the opening words of paragraph 6.20 of the Council's statement referred to the fundamental approach adopted by the two previous Inspectors and the Inspector had expressly referred to that point. The Inspector must have had that fundamental approach fully in mind when deciding as he did. He was plainly entitled to disagree with those inspectors in the light of the interpretation that he placed on paragraphs 3.4 and 3.6 of PPG2.
16. In my view, this second submission of Mr Stinchcombe must be rejected. With respect, the Inspector misinterpreted the two authorities to which he referred. He seems to have had thought that the judges in Ascot Wood and Churley had adopted a definitive interpretation of PPG2. From the passages to which I referred earlier in this judgment, it is clear that neither judge came to any definite conclusion about the interpretation of PPG2 paragraphs 3.4 and 3.6. Moreover, it seems to me that in considering Churley in particular the Inspector misunderstood that the decision of the learned judge turned very much on the specific wording of the local policy at issue in that case.
17. Moreover, it is clear to me that the Inspector must have left out of consideration the explanatory text to policy 22. Certainly he referred to the Council's Statement, although not expressly to those paragraphs which addressed the explanatory text. Moreover, the wording of the last sentence of paragraph 5 of his decision letter, and that of paragraph 9, where he indicates that the Council's reference to the "original" dwelling in policy 22 has the same meaning as the reference to the original building in paragraph 3.6 of PPG2, flies directly in the face of the plain words of the explanatory text to policy 22. In my view, it is wrong to say that those words have the same meaning. For present purposes, however, all I need to do is to underline the point that the Inspector has simply not addressed the interpretation placed on those words in the explanatory text to Local Policy 22. In my view, the explanatory text was a material consideration and in leaving it out of account the Inspector was wrong in law. Because he omitted it, he reached an incorrect interpretation of the words "original dwelling" in policy 22 and he wrongly concluded that the extension was one which is permissible within its terms.
18. On that basis I uphold the application by the Council in this case.
19. Now, Mr Clarke, do you want me to give permission and then, for the purposes of the rather convoluted procedure --
20. MR CLARKE: Your Lordship, the work has already been done for us, I think, in the consent order.
21. MR JUSTICE CRANSTON: I could not find it when I looked.
22. MR CLARKE: Yes, it starts on page 112. That is at tab K in the bundle. Your Lordship, this obviously was designed as a consent order and I would suggest the first three paragraphs on that first page could be deleted. But the basis of the order that I seek, with one amendment, is set out in the numbered paragraphs on the next page.
23. MR JUSTICE CRANSTON: Yes. So what do you need to delete there?
24. MR CLARKE: In the first paragraph you can delete "for the reasons set out in the schedule hereto" and the rest of that paragraph can remain.
25. MR JUSTICE CRANSTON: So the rest of that paragraph is all right. The second paragraph --
26. MR CLARKE: The second paragraph can remain.
27. MR JUSTICE CRANSTON: Now, we have to argue about the third.
28. MR CLARKE: And then the matter of costs. But, as the third paragraph that stands there, the first defendant has consented to the costs up to the point of its giving the consent, which are agreed, and so I only need to seek from you the further costs that have been incurred since then.
29. MR JUSTICE CRANSTON: Yes, and what is that?
30. MR CLARKE: Your Lordship, I have a costs schedule here.
31. MR JUSTICE CRANSTON: I have a schedule that comes to £13,000. Is that the one?
32. MR CLARKE: No. That is the Hutchinsons' schedule. My schedule is rather more modest and it is for £3,245.83. Your Lordship, I would ask you to add one item to that. There is an additional hour for the costs of attending the hearing, because it is -- it would be six hours, rather than the five hours estimated. So the sum in which I seek against the Hutchinsons is £3,355.83.
33. MR JUSTICE CRANSTON: I do not have the schedule.
34. MR CLARKE: Forgive me. (handed)
35. MR JUSTICE CRANSTON: Thank you. Mr Stinchcombe?
36. MR STINCHCOMBE: Yes, my Lord. Just a couple of matters on that, on the costs. Obviously costs are always in the discretion of the court. You will, I am sure, take it into account that in this case my clients were the third parties, the interested parties, who actually stood to have their property taken away and, insofar as the decision that you have made has been made, that impacts upon the unlawfulness of the decision made by the Secretary of State, who is obviously responsible for the decision that they are making. We understand that the Secretary of State consented to judgment in this case but in my respectful submission it is perfectly fair and right that the third party should not be further prejudiced unduly by the unlawful decision of the Secretary of State. The matter raised issues of public interest and importance and in particular as to the proper construction of national Planning Policy Guidance, PPG2, and it was right that this court had an opportunity to clarify that matter, and indeed it may be right that a further court have an opportunity to reconsider it. My Lord, other than that simple point of fairness, the only other issue I raise with you is this, that in looking at the costs schedule, and, again, I raise this principally by reference to discretion, if you will look at the costs schedule, you will see that certain costs have been incurred, subsequent, it is said, to the consent order being agreed, for example, preparing trial bundles and those matters. We simply say, well, surely at least some of that preliminary work would have been undertaken at an earlier stage by reference to the making of the application itself and so we question whether it really is fair to attribute that amount of time to those works, especially in the circumstances when it is the Secretary of State's error of law which has called Mr and Mrs Hutchinson to be here and not their own error of law.
37. MR JUSTICE CRANSTON: Mr Clarke, you did say that there are a number of other cases in train and this was a test case, in a way.
38. MR CLARKE: It is an important issue to our council, my Lord, but the Hutchinsons -- I say there is nothing here which suggests that costs should not follow the event. The Hutchinson had an opportunity to consent at the time and they set out their position in a letter on page 130 and there their reasons do appear to be that they would submit to judgment if the Secretary of State paid their costs. So it would seem at that stage, on 31st October 2008, that their reasons for objecting were not on the grounds of any merit of the claim but rather that they had not had their costs paid. But, in any event, they had an opportunity to withdraw or go along with the consent of the Secretary of State --
39. MR JUSTICE CRANSTON: What about this point that you have already done some of this work, or you should have done some of this work?
40. MR CLARKE: Well, I do not understand the point at all, my Lord. Costs of attending the hearing, clearly that is today. Preparing the trial bundle was done subsequent to the Secretary of State consenting and the skeleton arguments were all done subsequent to the consent of the Secretary of State. So only the costs that have been incurred since the Hutchinsons decided this matter needed to go to court are on this schedule and that is why --
41. MR JUSTICE CRANSTON: And you certainly are entitled to your costs.
42. MR CLARKE: Yes, and I would say finally, and in the round, it is a very much more modest sum than the sum that would have been claimed against this council if they succeeded. But, as to principle, it is the Hutchinsons who have required this matter to come to court.
43. MR JUSTICE CRANSTON: I think that is right, Mr Stinchcombe.
44. MR STINCHCOMBE: So be it, my Lord. My Lord, I do have an application to make that this be revisited in the Court of Appeal. My Lord, you will have noted, I hope, from page 131 of the trial bundle that the Treasury Solicitors did not take counsel's advice in respect of this matter and so we know that it has not been considered by counsel, as far as the first defendant is concerned. You will already have noted, I hope, from the way in which the Hutchinsons put the case that it does raise considerable issues of law and importance and, indeed, as conceded to be so by my learned friend and in an area which has clearly caused some degree of confusion in the past. My Lord, on the first issue, the first proposition that I put for you today, in my respectful submission you have gone some way -- some distance in a completely different direction to the earlier leading authority on the point. In that earlier authority, the learned Deputy Judge held that the most likely meaning of paragraph 3.6 and 3.4 of PPG2 was the one advanced by the Hutchinsons. In your judgment, unless I have misunderstood it, you are not merely saying that the more likely interpretation is the one advanced by my learned friend but the only interpretation advanced by my learned friend. If so, that really is a finding of some considerable potential importance and would merit, in my respectful submission, reconsideration as well.
45. MR JUSTICE CRANSTON: Mr Clarke, what do you say about this?
46. MR CLARKE: My Lord, the Hutchinsons have to show a real prospect of success. Your judgment was very clear and consistent with, as I understood it, the established authorities that PFG2 paragraph 3.6 is capable of those two meanings and has to be interpreted in light of local policy and, on the second point, you gave your judgment that it was clear the Inspector must have left out consideration of the explanatory text. So it is not finally balanced. The issues are clear and it is not -- it does not merit further consideration above.
47. MR JUSTICE CRANSTON: I think this is one of those cases where I will give permission, given the previous decisions of this court and given that I did go beyond them. So I will give permission.
48. Right thank you very much.