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Cite as: [2000] EWHC Admin 394

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ALAN FRANK SAGE v. SECRETARY OF STATE FOR ENVIRONMENT TRANSPORT AND REGIONS and MAIDSTONE BOROUGH COUNCIL [2000] EWHC Admin 394 (11th October, 2000)

Case no: CO/94/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday, 11 October, 2000

BEFORE:
MR DUNCAN OUSLEY QC
(Sitting as a Deputy Judge of the Queen's Bench Division)
-------------------
ALAN FRANK SAGE
- v -
THE SECRETARY OF STATE FOR ENVIRONMENT
TRANSPORT AND THE REGIONS
and
MAIDSTONE BOROUGH COUNCIL
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________

MS ALICE ROBINSON (instructed by Brachers, Maidstone, Kent ME16 8IH) appeared on behalf of the Appellant
JONATHON KARAS and RICHARD BARRACLOUGH (instructed by the Treasury Solicitor, London SW1H) appeared on behalf of the Respondent

____________________
Judgment
As Approved by the Court
Crown Copyright ©

MR DUNCAN OUSLEY QC:
This is an appeal under s289(1) Town and Country Planning Act 1990 against the decision of an Inspector dismissing the Claimant's appeal against an enforcement notice issued by Maidstone Borough Council on 19th March 1999. Three enforcement notices were the subject of decisions in the same letter by the Inspector. I am concerned only with Appeal B, which was made in respect of an enforcement notice, which, as corrected by the Inspector, alleged that there had been an breach of planning control by "the partial erection of a dwelling house," described as Building A. The notice required the demolition of the building and the removal of all the resultant materials.
The Claimant's appeal raised a number of issues but it is the way in which the Inspector approached the appeal on ground (d) of s174(2) of the 1990 Act which gives rise to the challenge.
There was no dispute but that the building had been in the state it was in at the time of issue of the enforcement notice for at least 4 years.
The issue before the Inspector was whether for the purposes of s171B(1) of the 1990 Act, enforcement action could no longer be taken because for the 4 years preceding 19th March 1999, "the operations were substantially completed".
The Inspector approached the matter as if the relevant question for the purposes of an appeal on ground (d), was whether the dwelling house had been substantially completed in 1995. He held that it had not been substantially completed. He put it in this way:
"28 The four-year period does not begin until the whole operation of creating the dwelling house is substantially completed.
29. For a dwelling house, what is substantial completion is likely to entail finishing the external wall, tiling, woodwork, glazing and guttering. Some internal finishes may remain to be carried out (paragraph 2.80 of circular 10/97). Building A has no glazing or guttering, no ground floor or access to the first floor, no service fittings or internal finishes. As a matter of fact and degree, I consider that Building A is not a substantially completed dwelling house. The four year period for immunity from enforcement action for this incomplete structure has not commenced. The appeal on ground (d) does not succeed."
In brief, the Claimant contends that this approach is wrong in law and that the completed building, against which substantial completion has to be judged, is not a dwelling house including its interior finishes nor indeed a building capable of occupation as a dwelling house, but rather is a building in respect of which any remaining works fall outside the definition of "development" in s55(1) of the 1990 Act or inside the scope of the exclusions from "development" in s55(2)(a).
On that latter approach, uncompleted interior finishes and works of improvement or alteration to the building affecting only its interior, or not materially affecting its external appearance, would not be relevant to the question of whether the "building operations" had been completed, and even less so to whether they had been substantially completed.
The relevant statutory provisions are as follows.
s171A which defines what is a breach of planning control, in respect of which an enforcement notice may issue, states:
171A Expressions used in connection with enforcement
"(1) For the purposes of this Act -
(a) carrying out development without the required planning permission; or
(b) failing to comply with any condition or limitation subject to which planning permission has been granted,
constitutes a breach of planning control."

s171B(1) contains the time limit after which enforcement action in respect of building operations cannot be taken. This is the provision invoked by an appeal under s174(2)(d).

171B Time limits
"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed."
s55(1) defines "development" and s55(2)(a) excludes certain activities from what might otherwise have been the scope of building operations.
s55 Meaning of "development" and "new development"
"(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development", means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land."
s55(1A) defines "building operations":
"(1A) For the purpose of this Act "building operations" includes -
(a) demolition of buildings;
(b) rebuilding;
(c) structural alterations of or additions to buildings; and
(d) other operations normally undertaken by a person carrying on business as a builder."
"s55(2)(a) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land -
(a) the carrying out for the maintenance, improvement or other alteration of any building of works which -
(i) affect only the interior of the building; or
(ii) do not materially affect the external appearance of the building."
Miss Robinson, who appeared for the Claimant, submitted that the breach of planning control was development by "building operations" which required, but lacked, planning permission. s55(1) defines development for which planning permission was required under s57 as including "building operations", and s55(2)(a) excluded from that definition, the carrying out of building works for the maintenance, improvement or the alteration of any building which affected only its interior, or which did not materially affect its external appearance. "The operations" which had to be "substantially completed" for the purposes of s171B(1) were the "building operations" of which the breach of planning control consisted. Therefore, activities which were not development requiring planning permission were not operations which had to be completed, or substantially completed in order to start the four year period.
This, she submitted, made sense of the enforcement context in which the issue arose. The local planning authority would be in a position to serve an enforcement notice as the building took shape but once, in effect, the material external works had been substantially completed, the four year period would start to run. This would still leave the builder at risk for four years but thereafter would provide certainty in relation to that which the planning control system sought to strike at.
Miss Robinson contended that the advice given in paragraph 2.80 of Circular 10/97 "Enforcing Planning Control" on which the Inspector relied was wrong in law. It states:
"2.8 The term "substantially completed" in section 171B(1) of the 1990 Act put into statutory terms, for the avoidance of doubt, the Courts' interpretation of the provisions in section 172(4)(a), as originally enacted, as to the date from which the four-year period, within which enforcement action may be taken in respect of authorised operational development, starts. Judicial authority in the case of Ewen Developments Ltd v. SSE [1980] J.P.L. 404 established that in the case of a single operation, such as the building of a house, the four year period does not begin until the whole operation is substantially complete. What is substantially complete must always be decided as a matter of fact and degree. It is not therefore possible to define precisely what is meant by the term "substantially completed". Arguably, in the case of a house it is not substantially complete until all the external walls, roof-tiling, woodwork, guttering and glazing are finished but it might be regarded as substantially complete if only some external decorating work, remains to be done, particularly if use of the building for its intended purpose has started. All the relevant circumstances must be considered in every case."
She submitted that the judicial authority referred to, Ewen Developments Ltd v SSE, is not authority for the proposition attributed to it. Instead it is authority for the different proposition that where enforcement proceedings are taken against a single act of development, in that case the single engineering operation of constructing an embankment, it was not open to the developer to say that the enforcement notice should strike only at so much of that single operation as had been constructed within the four years preceding the issue of the enforcement notice, leaving the residue of the embankment intact. Thus the case relied on does not address "substantial completion" at all or the extent to which "operations" in the enforcement context include those works for which planning permission is unnecessary. It addresses whether an enforcement notice must leave intact that part of a single operation, which was development requiring planning permission, which had been undertaken more than four years before the notice was issued.
If Miss Robinson's submissions are right, it is clear that the Inspector's approach cannot be sustained and it would be necessary for the question of substantial completion to be addressed on a different basis. Some factors at least, which he relied upon, would appear to be irrelevant.
Mr Karas for the Secretary of State, supported by Mr Barraclough for Maidstone Borough Council, submitted that Circular 10/97 was correct in its approach for the following reasons. s171(B)(1) required building operations, ie operations carried out by builders to be looked at as a whole. Mr Karas submitted that those operations nonetheless had to be operations which required planning permission. Mr Karas submitted that the Inspector's conclusion that the operations were not substantially complete, as a matter of fact and degree, was correct because what remained to be done were building operations carried out by builders within s55(1) and s 55(1A)(d) and were not excluded by s55(2)(a).
Mr Barraclough went a little further, submitting that even if not all of the operations involved a breach of planning control, it was still necessary to look at the building activities as a whole and ask if they were substantially complete.
Both stressed the significance of looking at the activities or operations as a whole and derived support for that from Ewen Developments supra, saying that the significance of that case was its emphasis on the need to look at "operations" as a whole.
Mr Karas submitted that s55(2)(a) never applied to this building, so as to exclude from the general ambit of s55(1) those activities carried on by builders which included interior works. He submitted that s55(2)(a) only applied to works of maintenance, improvement or other alteration to a building, and that phraseology predicated a building which had already been completed. It could not operate so as to remove from development control those works which were necessary for or were part of the completion of the building in the first place.
On that basis, the Inspector's conclusions were unimpeachable conclusions on matters of fact and degree.
Ably though Mr Karas and Mr Barraclough presented their submissions, I do not accept them, preferring instead those of Miss Robinson.
In my judgment, the "operations" which must be substantially complete are "building operations", which amount to "development", and which are in breach of planning control. To the extent that building activities are not "development", within s55(1) they are not "operations" which have to be substantially completed for the four year period to start running. I accept the approach of Miss Robinson and Mr Karas on this issue and reject that of Mr Barraclough. Likewise, to the extent that s55(2)(a) excludes other operations from the scope of development, they too are not operations substantial completion of which is necessary for the four year period to start running.
I do not accept Mr Karas' limited approach towards s55(2)(a). It applies to "any building". So long as the feature in question has progressed sufficiently to be a "building" which Building A had, beyond question, s55(2)(a) applies to it. It would involve reading too much into the section to read in the words "completed", or other words to the like effect. So doing would offer no greater certainty but instead would only raise a series of other questions as to how one judged "completed" in that new context. This suggested interpretation derives no support from the purpose of the provision, nor from the purpose of the enforcement of planning control. It would lead to the impossible position of planning permission being required for maintenance or improvement works, which did not themselves constitute development, to buildings long immune from enforcement, if it could be said of them that the interior finishes had never been completed. It would be very odd if activities which involved no development in themselves, could by their absence prevent immunity arising for a breach of planning control, even after all the works requiring permission had been long completed.
I do not consider that s55(1A) assists Mr Karas either. The activities upon which he relies i.e. those normally undertaken by persons in business as builders still have to be "operations", and therefore still have to fall within s55(1) and avoid the exclusion in s55(2)(a). The internal finishes, for example, even if "operations" in s55(1A) are not "development", because of s55(2)(a).
I do not consider that the statutory words of s171(B) and s55(1) or (2) can be set aside by appeals to the need to look at the activities involved in building a dwelling house, as a whole. It is rather to the operational development as a whole that one looks in assessing substantial completion.. To my mind Ewen Developments is of no application to the issue with which the Circular had to grapple in paragraph 2.80, and with which I am concerned. Ewen Developments prevents a single piece of operational development being split up into parts completed before or after a four-year period. To split the single operation into parts would be wholly artificial and would make nonsense of the concept of operational development being completed or substantially completed. It does not deal with the question of the nature of "operations" in this context; it was dealing with a single operation - the erection of an embankment - all which involved a breach of planning control. That is not at all the same thing as saying that the interiors which do not constitute development have to be finished before those building operations which are in breach of planning control are completed. The remedy of the breach may carry with it the need to remove works which by themselves would not involve a breach of planning control i.e. it cannot be argued that the exterior can be required to be demolished only it leaves the interior intact. But that is not at issue here.
Accordingly, on Miss Robinson's first ground, this appeal succeeds and it will be necessary for "substantial completion" and the relevance of and weight to be attached to the various factors referred to by the Inspector will need to be reconsidered. Internal finishes are irrelevant, I do not know what "service fittings" meant. It is not the test either that the building operations are complete only when the dwelling is capable of occupation as such. The building operations are complete when those activities which require planning permission are complete; those operations are substantially complete at an earlier stage.
Miss Robinson's second ground is that the Inspector failed to reach a conclusion on an issue which arose at the Inquiry as to whether the absence of glazing was because the glass had been broken three or four times by vandals since 1990 and eventually never replaced, as the Claimant said, or whether the absence of glazing was because none had ever been put in, as the Council claimed. This issue is said to be a principal controversial issue upon which a reasoned conclusion had to be expressed, because if the building had been glazed at some point, more than four years before 1999, that would have been relevant to judging whether the building had been substantially complete, even though the glazing had subsequently been removed.
In my judgment, if a building has become substantially completed and then ceases to be substantially completed because for example fire destroys the roof, the four year period stops, and a new four year period will not start running, until once again the building is substantially completed. Those new operations of replacing the roof would be in breach of planning control, and there would be no immunity from enforcement control in respect of those surviving parts of what had ceased to be a substantially completed building. The building is only immune from enforcement provided it has remained substantially completed throughout the four year period preceding the issue of the enforcement notice or, as s171(B) more obviously contemplates, has moved from substantial to total completion during that period and has remained completed.
On that analysis, it was unnecessary for the Inspector to have reached a view on whether the glazing had been removed because of vandals or whether it had never been inserted at all. All that matters is that for at least the period of four years before the issue of the enforcement notice, the building had not been glazed. It would not be necessary for the Inspector to form a view as to the reason for the absence of glazing in order for him to reach a conclusion as to whether the building had been substantially completed.
Miss Robinson's complaint that the Inspector never considered whether glazing or guttering would be operational development is a matter upon which, on reconsideration, the Inspector may feel it necessary to reach a conclusion. But that will be a matter to be looked at in the light of this judgment as to the right approach. It is not a matter for the Court to judge.
Miss Robinson's third ground was that the Inspector's attention had been drawn on a number of occasions at the Inquiry and in the Claimants' closing submissions to an earlier appeal decision given by the Secretary of State reported in 1972 JPL 385. It related to whether a dwelling house was immune from development because of the extent to which it was completed. It was helpful to the Claimant in a number of respects: the building there was for practical purposes complete externally, the internal work, glazing and guttering were not regarded as necessary for the building to be a viable dwelling and the enforcement notice was also dealt with on the basis that immunity attached to that which had been erected more than four years previously.
The Inspector did not refer to this other decision nor give any reasons for distinguishing it. It is submitted by Miss Robinson that he ought to have done so because he was necessarily disagreeing with that decision, which was sufficiently closely related to the matters in issue in this appeal for the Inspector to be obliged to deal with it, distinguishing it if necessary. She relied upon the approach set out by Glidewell LJ in R v Secretary of State for the Environment ex parte Baber [1996] JPL 1034 CA especially at p 1040.
In my judgment, the submissions in response by Mr Karas and Mr Barraclough are correct. It is quite clear that the Inspector has followed the approach set out in Circular 10/97 because that is the up to date Government guidance. That guidance is clearly different from and at odds with the 1972 decision letter. The Circular relies upon Ewen Developments which was decided in 1980 and requires a different approach from that in the 1972 decision letter towards the immunity from enforcement of those parts of a single building erected more than four years before the enforcement notice. All the Inspector need have said to make the position explicit is that he was following the advice in Circular 10/97 which conflicted with the 1972 decision.
In my judgment, he did not need to say that because it is perfectly obvious to the informed reader that that is what he has done. This third ground fails.
I should add that the allegation that the Inspector had made his mind up in advance is baseless. The alteration to the enforcement notice by the insertion of the word "partial" was agreed as an accurate reflection of the Council's allegation. The Inspector's comment in paragraph 27 of his Decision Letter to the effect that he agrees that the building is best described as "a dwelling house in the course of construction" is a view expressed after he has read all the evidence and held his site visit. He would have known when writing that, what his conclusion on ground (d) was going to be. He analysed the position against current Government guidance, and if that guidance had been correct, his decision would have been unimpeachable, except perhaps in relation to interior finishes.
However, for the reasons which I have given, the guidance, and hence the Inspector, approached the issue of "substantial completion" in a way which was wrong in law.
For that reason, this appeal is allowed and the matter will be remitted to the Secretary of State for determination.

- - - - - - - - - -

THE DEPUTY JUDGE: For the reasons given in the judgment which has been handed down, this appeal is being allowed and the matter will be remitted to the Secretary of State for determination.

Ms Robinson, you have changed sides now.

MS ROBINSON: I am very grateful. Would your Lordship order the Secretary of State to pay the claimants' costs? A schedule was served on the previous occasion and a small additional sum has been added for the purposes of today's judgment, taking the total to £9,860.31.

My Lord, I apprehend that the principle of an award is not in issue, but my learned friend from the Secretary of State is going to make two points about why the amount should be reduced --

THE DEPUTY JUDGE: Please wait while I set out the figure. Do you have a spare assessment?

MS ROBINSON: My Lord, I am afraid this is the only one I have. My Lord, that is a copy of the original assessment on which I have just written the additional sum for the judgment which is £150 plus VAT. My Lord, if I may, I will wait to hear what Mr Karas has to say before responding.

THE DEPUTY JUDGE: Yes. Mr Karas?

MR KARAS: My Lord, I make four points rather than two. The first is a very small one. It is not on quantum, it is just a matter of formality. We have not seen a signed revised statement of the costs. I anticipate an undertaking will be given that one will be lodged. We would be happy with that.

The next three points, however, are of more substance. The first is a particular item in relation to the claimant's statement of costs. In particular the sum claimed in respect of photocopying and faxes in the sum of £811.20 which, given the total sum claimed, in my respectful submission, is a somewhat surprising sum. Over five per cent, getting on for ten per cent of the total sum claimed seemed to be photocopying and, in my submission, that cannot be an appropriate sum to charge.

THE DEPUTY JUDGE: Has there been any enquiry made of Mr Sage as to how that sum was arrived at?

MR KARAS: We have asked and, as I understand it, the way things have been conducted by Mr Sage's solicitors are that the photocopying is not conducted inhouse; it is contracted out. We respectfully submit that given the total sum and given the issues involved, one would anticipate a sum considerably less than that.

THE DEPUTY JUDGE: Is it the quantity of copying that is the complaint or the amount that it has cost for that particular amount to be done that is your concern?

MR KARAS: I anticipate it is the cost given the amount of copying that required to be done. We would anticipate that inhouse it would have been done considerably cheaper. That is the first small point to which I draw your Lordship's attention.

The second point is a broader point and it relates to your Lordship's discretion in relation to costs rather than any particular items on the schedule of costs provided to your Lordship. The point is this: your Lordship will recall that in the witness statement put before your Lordship there was an allegation effectively of bias, which your Lordship has dealt with in the last substantive paragraph of the draft judgment where you find baseless the allegation that the inspector had made up his mind in advance.

In my submission that was a wholly inappropriate allegation to include in any witness statement particularly as it did not form any of the grounds of appeal advanced before your Lordship. In those circumstances, I would submit it is appropriate for the court to take notice of this and disallow an amount to reflect unnecessary and indeed baseless allegations being made within the witness statement.

It is hard to see from the schedule of costs what that amount will be since the witness statement is not dealt with separately, but I would submit that a deduction of about £500 would be appropriate. This is a case that ultimately turned on the material before the inspector not allegations contained in the witness statement.

The third main submission that I make -- the last one -- is this. It is again a broad submission as to your Lordship's discretion. Your Lordship had to deal with three grounds, admittedly it is the first ground on which your Lordship decided against the Secretary of State which took up most of the court's time, but there were two other grounds which required preparation, skeleton arguments, consideration and indeed which took up some argument before your Lordship.

That being the case, I would respectfully submit that again it is appropriate to make a deduction to reflect the fact that we have indeed been successful on these issues, and rather than seek an award of costs in our favour on those issues, I respectfully submit the appropriate course is to make a deduction of say 2 or 3 thousand pounds from the total costs claimed against us, being broadly one third or 20 per cent of the costs claimed. Those are my submissions.

THE DEPUTY JUDGE: Thank you very much. Ms Robinson?

MS ROBINSON: My Lord, first of all I am very happy to give an undertaking that a signed cost schedule including the additional sum for judgment will be lodged if your Lordship considers that is necessary.

As to the photocopying, I will just explain what I have been instructed the position is. The photocopying is -- contracted out is not quite the right word. It is carried out inhouse but my instructing solicitors have set up -- within the firm in effect -- a separate section which does nothing but photocopy and charges for photocopying on a commercial basis. So it is the amount that one would have to pay if one did go out into the market for photocopying.

The second point is that those are sums which the client is bound to pay under the terms on which the firm accepts instructions. My Lord, if it is considered that the sum claimed is inappropriate, may I draw your attention to this: considerable costs would inevitably have been involved because there is quite a lot of colour photocopying involved because of the photographs in the bundle. In any event, someone within my instructing solicitors' firm would have had to carry out the photocopying in any event and because my learned friend had alerted me that he was taking this point, I took instructions. My instructions are that if the photocopying had been done by a trainee then their time would have been charged out on the basis of about £65 to £70 an hour.

I also draw your Lordship's attention to the fact that the amount of the photocopying was substantially increased by the fact that the second defendant swore a witness statement which had to be included in the bundle, which runs to a very considerable number of pages but with respect adds nothing at all to the case. Most of it is argument rather than evidence and all but one of the exhibits were photocopies of authorities which are reported in well known journals. So that has to be taken into account as well. My Lord, that is all I want to say about photocopying.

I move on to the other two points. In my respectful submission the correct approach towards my learned friend's points three and four is to consider in the round whether or not the costs have been increased by any substantial measure as a result of those two points having been taken. My learned friend was good enough to accept, I suggest rightly, that the ground on which my client was successful -- ground one -- was the main point. It took up virtually all of the court's time and grounds two and three were dealt with very shortly.

In those circumstances, I suggest this is not a proper case for any deduction at all to be made. If your Lordship is minded to make a deduction, I would suggest it should be on the basis that my client has been put to the trouble of bringing these proceedings, having to obtain leave to do so at an earlier hearing, and has been successful. So any sum deducted for these additional two grounds should be very modest indeed because the vast majority of costs incurred would have been incurred in any event.

THE DEPUTY JUDGE: Do you want to come back on any of those points briefly, Mr Karas?

MR KARAS: In relation to the photocopying, although a small point it is a point which your Lordship should take into account quite seriously. It appears from what Ms Robinson has told you that her instructing solicitors have set up an inhouse department to make money out of photocopying and in my submission it is wrong that other litigants should be forced to pay for that.

In relation to the other points, your Lordship has my submissions. The points were taken. We had to deal with them, and in relation to the witness statement an improper allegation was made which was not pursued. Unless I can assist your Lordship any further, those are my points.

THE DEPUTY JUDGE: Thank you very much. In the state of the material in front of me, I do not propose to make any of the deductions that Mr Karas has asked for briefly, for these reasons: whilst I can understand the concern in relation to photocopying becoming a profit centre in its own right, one has to bear in mind that the cost of a trainee doing the photocopying would otherwise need to be allowed for and there has been no material before me which enables me to see whether doing it one way instead of another has substantially increased costs. I also recognise the fact that the claimant has been put to the expense of dealing with Maidstone's witness statement which had to be photocopied and was of no real significance in the case.

So far as the third and fourth points which are made, relating to the allegation of bias and the two grounds on which the Secretary of State succeeded, in my judgment the right approach to this is that one should look at these matters in the round. The amount of time that was taken up by dealing with those two other grounds, and the amount of costs associated with skeleton arguments and preparation in relation to them, are not in my judgment likely to be particularly significant in this case.

The main issue was indeed the one upon which the claimant succeeded, and one needs to recognise that there are other costs, including dealing with for example the attendance of the second respondent, that mean in the end that it is only appropriate to look at it in the round otherwise one needs to make a whole series of minute adjustments.

So for those reasons I do not propose to make any deduction in respect of the costs. Whilst I can see that Mr Karas has a point, it is not a sufficient point to warrant the detailed examination that would then follow. Accordingly the claimant succeeds in the sum of £9860.31.

MR KARAS: My Lord, there is one further point I would draw to your Lordship's attention: in the light of the case of Clarke v Pert it looks as though I must obtain the leave of the permission of the Court of Appeal to take this matter to them, but it may be appropriate -- given your Lordship's judgment -- that your Lordship should indicate whether or not in your Lordship's view this does indicate that this case is a matter which deals with an important point of principle or practice.

This is a point on which there has been no previous authority and indeed, as your Lordship has pointed out, it appears that government policy in one respect may be wrong or misleading. That being the case, there is an important case to be dealt with. Does your Lordship feel able to give an indication?

THE DEPUTY JUDGE: I am not sure it is appropriate for me to give indications as to whether, if I had the power to grant permission I would have granted permission. I think the Court of Appeal if they are the body to whom the application can only be made, will have to make their view looking at the terms of the judgment. But I would have thought the position in relation to the importance of the point and its novelty is clear.