Neutral Citation Number: [2002] EWHC 1200 (Admin)
CASE NO: CO/5306/2001
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2

Date: Monday, 27th May 2002
B e f o r e:

MR JUSTICE SULLIVAN

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CARTER COMMERCIAL DEVELOPMENTS LIMITED  (claimant)

-v-

SECRETARY OF STATE FOR THE ENVIRONMENT (defendant)

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Computer-Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited,
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
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Mr C Katkowski QC appeared on behalf of the Claimant
Mr T Morshead appeared on behalf of the Defendant

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J U D G M E N T
1.	MR JUSTICE SULLIVAN: This is a challenge under section 288 of the Town and Country Planning Act 1990 (“the Act”) to two decisions of an inspector, appointed by the defendant, contained in a decision letter dated 19th November 2001.
2.	In that decision letter, the Inspector dismissed two appeals by the claimant and refused to approve details of a flood mitigation scheme submitted pursuant to Condition 04 of a planning permission granted by Mendip District Council (“the Council”) on 17th July 1998 (“the 1998 permission”), and refused planning permission for the engineering works necessary to implement that flood mitigation scheme.
3.	The appeal site is about 6.5 hectares in extent and lies to the south of the A362 Wallbridge on the eastern fringes of Frome. Separated from the site and to the north west of it is a junction between Rodden Road and Wallbridge. The site is in the flood plain of the Rodden Brook, a tributary of the River Frome, and is therefore prone to flooding. It is within a flood risk area, as identified in the emerging local plan.
4.	The planning history of the site extends back over some years. Planning permission for retail development on the site was initially granted on appeal. That planning permission did not include approval for a petrol filling station, so the then intended developers, Safeway, sought a further permission for:
“... erection of retail store, use class A1, with coffee shop, petrol filling station and carparking facilities”.
5.	Planning permission was granted, subject to a number of conditions, on 28th October 1992 (the 1992 permission). The conditions included the following. Condition 04:
“Before the store hereby permitted is first opened for trading the flood prevention works identified in the appraisal report “Proposed Improvements to Rodden Brook and River Frome Appraisal of Options”, prepared by Lewin Fryer and Partners, shall be completed in accordance with details to be submitted to and approved by the Local Planning Authority”.
6.	The reason given was:
“In order to ensure that flood risks affecting the site are reduced to an acceptable level permitting development on the appeal site without making flooding worse elsewhere”.
7.	Condition 05: 
“Before the store hereby permitted is first opened for trading the highway works shown on drawing number ... shall be completed in accordance with details to be submitted for approval by the Local Planning Authority, they shall consist of traffic signals at the junction of Rodden Road with the A362 and alterations to Styles Hill to include a right turning lane on the A362; a distributor road within the site to provide access to the application site, adjoining farm and industrial land; a roundabout at the junction of the distributor road with the A362; provision of a footway/cycle track alongside the A362”.
8.	The reason given was:
“In order to ensure that the development makes satisfactory provision for highway access and the consequences of additional traffic flows on the surrounding highway network”.
9.	On 6th February 1997, the claimant made an application under section 73 of the Act “to vary Condition 04”. The application form merely requested “variation to Condition 04 (of the 1992 permission) concerning flood alleviation works”.
10.	The form is dated 6th February 1997, and in a covering letter of the same date, the claimant's planning consultants set out the reason given for the imposition of Condition 04, and explained:
“The purpose of this Condition is fully accepted by the applicants.
“It is clear from discussions with yourselves and the Environment Agency that the Lewin Fryer measures taken as a whole are more extensive than necessary to fulfill this purpose and would have a greater detrimental environmental impact than is desirable. The suggested Variation to Condition 04 therefore seeks to provide for the consideration of other flood alleviation measures which can achieve the same purpose but with a lesser environmental impact”.
11.	Suggested amended wording for Condition 04 was then set out, and the letter concluded:
“Mendip District Council should be aware that the effect of this variation will be to acknowledge expressly that alternative flood alleviation schemes can be submitted and considered which are more environmentally sensitive than the Lewin Fryer proposals”.
12.	Planning permission was granted on 17th July 1998 in the following terms:
“Permission for Development
“The Mendip District Council, being the Local Planning Authority for the said District, Hereby Grants Conditional Permission, in accordance with the submitted application and the accompanying plan(s), but subject to the conditions hereunder stated.
“Proposal: Variation of Condition Number 04 of [the 1992 permission] (Concerning Flood Alleviation Works)
“Location: Land at Wallbridge, Frome.
“Conditions Attached to Permission and Reasons Therefor:
“1 Before the store permitted under [the 1992 permission] is first opened for trading the floor prevention works identified in the appraisal report “Proposed Improvements to Rodden Brook and River Frome: Appraisal of Options”, prepared by Lewin Fryer and Partners and dated 20th March 1992, or such other scheme as may be prepared and submitted for the purposes of flood prevention, shall be completed in accordance with details to be submitted to and approved in writing by the Local Planning Authority.
“Reason: In order to ensure that flood risks affecting the site are reduced to an acceptable level permitting development on the site without causing flooding elsewhere to the detriment of land and property”.
13.	The claimant put forward its proposals under the new Condition 04. They were not accepted by the Council. The claimant appealed to the Secretary of State. At the enquiry before the Inspector in October 2001, there were a number of matters in dispute between the claimant and the Council. The Inspector resolved those matters in the claimant's favour in paragraph 35 of the decision letter, as follows:
“I conclude that [the 1998 permission] is an independently viable permission, which incorporates all the conditions of [the 1992 permission] ... This permission was validly implemented by the works carried out in October 1997 and remains extant”.
14.	He then turned to the remaining matter in dispute: “The Interpretation of Condition 04”. This is the sole issue in these proceedings. The bone of contention between the claimant and the Council is the Rodden Road junction. As the Inspector explained in paragraph 51 of the decision letter: 
“It is not disputed that the A362 floods frequently. The Environment Agency confirms that the Rodden Road junction, the lowest point along this part of the A362 ... floods on average once each year ... The appellant's scheme does not, and is not intended to, affect the levels of flooding on the A362”.
15.	Did Condition 04 enable the Council to insist on a flood mitigation scheme, which would not merely prevent the appeal site from flooding, but which would also resolve the long standing flooding problem at the Rodden Road junction? The claimant disputed the Council's entitlement to insist on such a scheme under Condition 04. The Inspector accepted the Council's submissions. He was satisfied that the claimant's proposed flood mitigation scheme:
“... would ensure that the food store development would have no significant impact on flood water levels. The Environment Agency confirms that the proposed scheme would ensure that flooding in the area would not increase, due to the food store development, and that the store itself could be protected during a one in a hundred year flood event ... But the appellant's evidence makes it clear throughout that the scheme being put forward is not intended to address the impact of flooding on the A362, as it is an off-site problem that already exists, which the food store development cannot be expected to resolve ...”
16.	The Inspector disagreed with the claimant's position and concluded that it was:
“... necessary and reasonable to require that the flooding problem on the A362 is resolved before the food store proceeds. It is reasonable because it is directly related to the development. Without the food store, people would not be attracted to the site and so would not be put at risk”.
17.	The issue before me is whether the Inspector was entitled, on a proper interpretation of Condition 04, to require the complainant to resolve the flooding problem on the A362.
	The Claimant's submissions
18.	On behalf of the claimant, Mr Katkowski QC accepts that a Grampian-style condition may be imposed to secure the carrying out of off-site works. Condition 5, on the 1992 permission (see above) is an example of the imposition of such a condition. By contrast, he submits, Condition 04 required no more than works to protect the site itself from flooding.
19.	Having set out the terms of Condition 04 (see above), the Inspector concluded in paragraph 37 of the decision letter that the difference in terminology as between “flood prevention scheme” and “flood mitigation scheme” was of no consequence. I agree, and before me the parties have not submitted otherwise.
20.	In paragraph 38, the Inspector acknowledged that Condition 04 enabled an alternative to the Lewin Fryer scheme (which would have lowered flood water levels on the A362) to be submitted for consideration.
21.	Paragraph 39 contains the Inspector's reasons for rejecting the claimant's interpretation of Condition 04. It is as follows:
“In looking at the aims and the Condition, the appellant relies on the reason, particularly the phrase 'permitting development on the site without causing flooding elsewhere to the detriment of land and property'. If that were the only test to be applied, the appellant's scheme would be acceptable, since it is not disputed that it would leave existing flood water levels unaffected; it makes matters neither better nor worse. But such a narrow interpretation, based purely on part of the reason, must be rejected for two main reasons. First, it ignores the initial part of the reason, which states 'to ensure that the flood risks affecting the site are reduced to an acceptable level'. If the reason is to be considered, it must be read as a whole. It is the Council's opinion that 'flood risks affecting the site' means the risk of flooding on the A362, the main road serving the site, which would continue to flood under the appellant's scheme.
Second, and more importantly in my view, is that the appellant's approach elevates the reason above the condition. I acknowledge that local planning authorities have a duty under article 22(1)(a) of the Town and Country Planning (General Development Procedure) Order 1995 to state clearly and precisely the full reasons for Any Conditions imposed on a planning permission. But the courts have held that failure to state reasons does not invalidate the condition and, as the Council points out, enforcement action is taken in respect of the breach of a condition. Whilst the reason may therefore be taken into account, it cannot be determinative”.
22.	In paragraph 40, the Inspector was justifiably reluctant to look at extrinsic evidence, but he concluded in paragraph 41 that:
“When the condition and reason are read as a whole, I find no ambiguity”.
23.	Mr Katkowski submits that the two reasons given by the Inspector in paragraph 39 for reaching this conclusion are inadequate. The Council's opinion that “flood risks affecting the site means the risk of flooding on the A362” cannot be determinative of the matter. The Inspector is correct to say that the reason given for the imposition of a condition cannot be determinative as to its meaning, and should not be “elevated” above the wording of the condition, but he fails to grapple with the combined effect of the condition, when read together with the reason given for its imposition.
24.	He acknowledges, however, that this is not a reasons challenge to the Inspector's decision letter. Both parties accept that, whatever reasoning may have been adopted by the Inspector, the interpretation of Condition 04 is a question of law for this court to determine. The parties are further agreed that the applicable principles are to be found in the judgment of Keene J, as he then was, in the R v Ashford Borough Council ex parte Shepway District Council, 1999, Planning Law Case Reports, page 12, at pages 19C to 20B.
25.	Omitting the many authorities cited by Keene J, his propositions (1) to (4) are as follows:
“(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions.
“(2) This rule excludes reference to the planning application, as well as to other extrinsic evidence. Unless the planning permission incorporates the application by reference, in that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application.
“(3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as '... in accordance with the plans and application' or '... on the terms of the application', and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted.
“(4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity”.
26.	On behalf of the Secretary of State, Mr Morshead reminds me that, subject to these rules, planning permissions and conditions are not to be construed narrowly or strictly, or contra proferentes the local planning authority (see the authorities cited in paragraph 70.71 in the Encyclopedia of Planning Law).
27.	Looking at the 1998 planning permission, Mr Katkowski submits that on its natural and ordinary meaning, Condition 04 is concerned with schemes which will prevent flooding of the permission site, not with schemes which will prevent flooding elsewhere. The proposal is described as “Variation of Condition Number 04 of (1992) Planning Consent Concerning Flood Alleviation Works”.
28.	Without more, the starting point in interpreting a planning permission would be that such works would be for the purpose of flood alleviation on-site. Clear words would be required to include “off-site” works.
29.	Moving on to the terms of the condition itself (before considering the reason given for its imposition) it refers to “flood prevention works” and to the submission of a “scheme” for such works.
30.	Again, he submits that in the context of a grant of planning permission for the carrying out of development upon a particular site, the natural and ordinary meaning of these words is that the purpose of the works is to prevent flooding of the permission site, not to prevent other land from flooding. A condition which enabled the local planning authority to require a scheme which prevented flooding on other (unspecified) land would be insufficiently precise. Compare the detailed requirements for off-site works described in Condition 05. In addition, such a condition might well be unreasonable, because it would enable the local planning authority to require works on land that was not under the developers' control.
31.	In the present case, the Inspector accepted in paragraph 73:
“... that it could take many more years to implement a scheme such as that proposed in the Lewin Fryer report, even if the Environment Agency were to place it in its capital programme immediately”.
32.	He submits that the reason given for the condition (see above) does not alter that clear and unambiguous position. It refers to “flood risks affecting the site”, but it then dintinguishes between the site and “elsewhere”.
33.	If the question is asked: “what is to happen elsewhere?”, i.e., off the site, the answer is that there shall be no detriment to such land and property -- not that there shall be an improvement in terms of flood risk. 
34.	In short, the reason explains that Condition 04 is intended to ensure that the application site is protected from flooding, but that this is not achieved at the expense of increasing the flood risks for other land.
35.	Thus, reading the operative part of the planning permission, the condition and the reasons for its imposition, the ordinary and natural meaning of the words used is in accordance with the claimant's interpretation of the condition, as advanced before the Inspector.
36.	Strictly speaking, it is therefore unnecessary to look at the planning application, although it is incorporated in the planning permission. The planning permission is granted “in accordance with the submitted application”. The submitted application comprised both the form and the letter of the same date. Together, these made it clear that the purpose underlying the application was to enable schemes less extensive than the Lewin Fryer proposals to be put forward for consideration by the Council.
	The Defendant's submissions
37.	On behalf of the Secretary of State, Mr Morshead submits, by reference to the reason given for the imposition of the condition, that the risk of the site flooding is only one of “the flood risks affecting the site”. Read together with its reason, what the condition envisages is a reduction in the flooding risks “affecting the site” sufficiently to permit “development” on the site without causing adverse flooding consequences elsewhere. The flooding risks “affecting the site” will vary according to what development occurs upon it. If the site was put to agricultural use, it might not be “affected” by flooding elsewhere, but the “development” in question involves a material change of use from undeveloped land to a food store, with an accompanying increase in the number of people using the road network to get to and from it. The risk of flooding along an important route to the site, which exposes visitors to the food store to danger, is capable of being described as one of the flood risks “affecting” the site.
38.	If the condition is read apart from the reason given for its imposition, then the condition itself does not delimit the scope of the “flood prevention works” that the decision maker is entitled to insist upon in any scheme submitted pursuant to the condition, but he submits that Condition 04 has to be construed by reference to the entirety of the permission, and in particular to the stated reason for its imposition.
39.	The claimant treats the “development” mentioned in the reason for Condition 04 as if it involved only the operational development that will take place on the site -- the erection of the store -- without giving recognition to the off-site implications of the associated material change of use to a large food store attracting a significant number of shoppers.
40.	He submits that the Inspector avoided that error. In paragraph 53 of his decision letter, the Inspector contrasted the existing and future levels of activity around the site, and in paragraph 54, he drew an analogy with the case of a condition requiring highway improvements to resolve an existing highway danger. The Inspector's anxiety for the safety of visitors to the site recognised that the flooding risks “affecting the site” were not limited to the risk of flooding on the site itself.
41.	Whether or not the letter of 6th February 1997 is treated as part of the planning permission, the position is not as clear-cut as suggested on behalf of the claimant. The letter does not say that the intention behind the request to amend Condition 04 is to enable the claimant to put forward a scheme which did not address flooding at the Rodden Road junction. Indeed, the letter says that the goal of the application was “to achieve the same purpose” as the Lewin Fryer proposals, albeit with a lesser environmental impact. Thus, the terms of the application are too ambiguous to assist with the construction of Condition 04, which of its face is concerned with wider issues of safety than simply the risk of the site itself flooding.
	Conclusions
42.	The application for planning permission was incorporated in the 1998 permission which granted “conditional permission in accordance with the submitted application ... but subject to the conditions hereunder stated”.
43.	By itself, the application form is of no assistance in construing the 1998 permission, and I am doubtful whether the accompanying letter can properly be treated as part of the application for the purposes of principles (2) and (3) in the Ashford case.
44.	It is unnecessary to reach a final conclusion on this aspect of the case, but I am inclined to the view that the letter of 6th February 1997 falls into the category of “other extrinsic material”, which should be looked at only if it is necessary to do so in order to resolve an ambiguity, in accordance with principle (4) in Ashford. 
45.	It is unnecessary to have recourse to such extrinsic material in the presence case because in my judgment Condition 04 is not ambiguous.
46.	I accept Mr Katkowski's submissions that, without more, the references to “flood alleviation works” in the operative part of the planning permission and “flood prevention works” in Condition 04 mean works to alleviate (or prevent) flooding of the application site itself. The very general words used must not be taken out of context: the context is an application for planning permission to develop a particular site.
47.	While conditions requiring off-site works may be imposed, if they are sufficiently precise and reasonable in all the circumstances, one would expect any such obligation to be imposed in the clearest possible terms (see, for example, Condition 05 in the 1992 permission).
48.	Circular 11/95 advises that conditions should satisfy a number of tests. Those tests are that the conditions should be:
“1. Necessary
“2. Relevant to planning
“3. Relevant to the development to be permitted
“4. Enforceable
“5. Precise
“6. Reasonable in all other respects”.
49.	I accept Mr Morshead's submission that conditions should not be construed narrowly or strictly, nor should they be construed contra proferentes the local planning authority. Rather, they should be construed in a benevolent manner. Construing them in such a manner will mean that the court should be astute to ensure, if at all possible, that conditions are not so interpreted that they are imprecise and unreasonable. A condition which failed to delimit the scope of “flood prevention works”, so that the local planning authority could request a scheme to prevent flooding far beyond the application site on unspecified land, outwith the applicant's control, would be both imprecise and unreasonable.
50.	The recipient of the planning permission would not be able to judge what works he might be required to carry out and would have no assurance that he would be able to carry out such works as might be thought to be necessary by the local planning authority.
51.	Mr Morshead submitted that such a general requirement in a condition would be saved by the fact that any refusal of a scheme submitted pursuant to the condition would have to be based on a flooding problem that was relevant to the development proposed and was reasonable in all other respects. The fact that these tests would undoubtedly be applied to any submitted scheme supports the claimant's contentions as to the scope of the condition. To construe the condition in the manner suggested by the Secretary of State would render it insufficiently precise and unreasonable.
52.	Absent any indication to the contrary, the natural and ordinary meaning of “flood alleviations works” or “flood prevention works” in either the operative part of a planning permission or in a condition in a planning permission is a reference to works to prevent the flooding of the permission site, not works to prevent flooding at other unspecified locations. Is that position altered by the reason given for the imposition of Condition 04?
53.	In my judgment, the answer to that question is no. If anything, the reason reinforces the claimant's construction of the condition. I acknowledge that the reason does not say “in order to ensure that flood risks at the site are reduced to an unacceptable level”, but it clearly distinguishes between what is to happen at the site and what is to happen “elsewhere”.
54.	The underlying intention is clear. The site must be protected from flooding, but that must not be done in such a way as to shift the flooding problems onto other land to its detriment. I accept that, in isolation, the words “flood risks affecting the site” are capable of a wider meaning than “flood risks at the site”, but the question is whether, in the context of this planning permission, they should be given such a wider meaning.
55.	I have referred to the requirement that conditions must be both precise, so that the recipient of the planning permission knows what he has to do in order to comply, and reasonable. The A362 access is the principal route to the proposed development from Frome. If it can be said that flooding at the Rodden Road junction “affects the site”, because it affects shoppers who would be attracted to the site, why stop at the Rodden Road junction on the A362? Indeed, why stop at the A362? On the Secretary of State's interpretation of the condition, flooding problems could be said to “affect” the site within a substantial part of its shopping catchment area.
56.	In general, a condition will be unreasonable if the recipient of the planning permission is unable to comply with it, or if compliance depends upon the actions or consent of a third party over which the applicant has no control (see paragraph 37 of the annex to circular 11/95). 
57.	In British Railways Board v the Secretary of State for the Environment and Hounslow Borough Council” (1994) JPL, 32, the House of Lords decided that the Secretary of State's policy in paragraph 40 of the circular that “such a condition should only be imposed on a planning permission if there are at least reasonable prospects of the action in question being performed within the time limit imposed by the permission” was unreasonably restrictive and could not be applied in a blanket fashion (see the discussion in paragraph 72.06/2 of the Encyclopedia).
58.	But the underlying requirement that a condition must be reasonable remains. A condition which, on its face, enabled the local planning authority to insist on “flood prevention works” to alleviate flooding problems at unspecified off-site locations, upon the basis that they would “affect” the site, would not merely be hopelessly imprecise, it would also be unreasonable in the absence of some evidence that the applicant for permission was in a position to comply with, or secure compliance with, the condition, or, as in the British Railways Board case, was prepared to take the commercial risk of negotiating with a reluctant land owner or land owners.
59.	I do not accept that the open-endedness of a condition construed in such a manner, making it both imprecise and potentially unreasonable, can be left to be cured at the stage when a detailed flood prevention scheme is submitted. If at all possible, the condition should be construed so that from the outset it satisfies the tests of precision and reasonableness.
60.	The words “flood risks affecting the site” are not to be construed in the abstract, but in the context of a condition imposed upon a grant of permission for the carrying out of development on a specific site. In this context, the claimant's submissions as to the natural and ordinary meaning of the words in Condition 04, read together with the reason given for its imposition, are to be preferred. It follows that this decision letter must be quashed.
MR KATKOWSKI: I am obliged, my Lord. I ask, therefore, for an order that the decision letter of 19th November 2001 be quashed, and that the claimant's costs be paid by the first defendant, the Secretary of State, in a sum to be the subject of detailed assessment, if not agreed beforehand.
MR JUSTICE SULLIVAN: Can you resist any of that?
MR MORSHEAD: No, certainly not in principle. I simply remind your Lordship that the appeal was made on two grounds, and my learned friend has advanced only one of them.
From the Secretary of State's point of view, I could not say that additional costs have be incurred by the Secretary of State in dealing with the second ground, but I do not know what additional costs my learned friend's team have incurred in preparing for the second ground prior to this skeleton argument.
MR JUSTICE SULLIVAN: Not much in his skeleton argument, anyway.
MR MORSHEAD: No, but your Lordship will have seen that some work at least has gone into preparing a master trial bundle, none of which has been necessary to refer to in the course of the hearing, and, my Lord, without trying to foreshadow or anticipate here what might be the outcome of the taxation, it is possible that some of the work that was done was work that need not have been done if the grounds had been articulated, as Mr Katkowski put them in his skeleton argument, rather than as was put in the detailed grounds.
If your Lordship is looking for the --
MR JUSTICE SULLIVAN: No. I was just thinking that the way to deal with that, surely, is to say it goes for detailed assessment, but just to add a rider that the costs judge is to consider the extent to which, if at all, additional costs were incurred in preparing the master trial bundle to deal with ground two.
I would have thought if you have that, then you are protected on that, are you not?
MR MORSHEAD: My Lord, yes. I am grateful.
MR JUSTICE SULLIVAN: I have not asked Mr Katkowski to respond, but it is pretty obvious that if ground one was to succeed, then ground two was quite unnecessary, and query whether ground two would have availed. He obviously took the view that it would not have availed him on its own if he did not succeed on ground one, anyway. Yes, he is nodding.
So that will be the order, and either in the order itself, or those behind you can note, that I expressed the view in open court that the costs judge should justify -- I do not express any view about it, but just simply consider whether any extra costs were incurred in respect of ground two.
MR MORSHEAD: I am grateful. Thank you, my Lord.
My Lord, I have an application for permission to appeal. Your Lordship's judgment touches on the relationship --
MR JUSTICE SULLIVAN: It is an interpretation point, and generally speaking on interpretations, what is absolutely clear to one person is equally clear in the opposite direction to somebody else. So, subject to what Mr Katkowski may say, I would say that there is a real prospect of a different interpretation, and of a different approach being adopted, so I give you permission on that ground.
MR MORSHEAD: My Lord, perhaps my reason for mentioning that is, as it were, the second ground on which appeals can sometimes be made, it being the first time that I know of in which the relationship between the considerations that test validity of connections of construction --
MR JUSTICE SULLIVAN: Yes.
MR MORSHEAD: That may be another reason.
MR JUSTICE SULLIVAN: You have a narrow point, but it is a point of construction, and there is the famous Court of Appeal case where a two man Court of Appeal and each of them looked and the other said: it is perfectly clear, and the other said “yes”, and then they gave different interpretation.
Do you want to say anything against that, Mr Katkowski?
MR KATKOWSKI: Yes.
MR JUSTICE SULLIVAN: In the light of what I have said, you would like to say something? Not with much hope, I suspect.
MR KATKOWSKI: My Lord, yes. Obviously, I resist the application, although in hope rather than in expectation, I suppose.
My Lord, it is a straightforward interpretation, as my Lord explained, with great respect to my Lord and to my learned friend. It has made no new law at all, and so therefore, with great respect, this does not seem to be a matter that should entertain or detain the Court of Appeal, but I anticipate that my Lord is against me on resisting that.
MR JUSTICE SULLIVAN: Thank you very much. Yes, I am.
I simply say that it is an interpretation point and there is a real prospect that a different interpretation might be preferred. Thank you very much.