QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (THE GARDEN AND LEISURE GROUP LIMITED)
|- and -
|NORTH SOMERSET COUNCIL
MR R VANDERPLANK
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Timothy Straker QC and Mr Jonathan Auburn (instructed by Sharpe Pritchard) for the Defendant
Crown Copyright ©
Mr Justice Richards :
"Members may recall that planning permission was granted for the above development by the South Area Planning Committee at its meeting on the 9th July 1986. Approval was granted subject to the applicant entering into a Section 52 Agreement [i.e. what is now a section 106 agreement] to secure a contribution towards a highway improvement works, to define a sales area on the site and to categorise the items that could be retailed ….
The matter was again referred to the Committee at its meeting on 26th August 1987. The applicant felt that whilst he would be able to meet the cost of road improvements, the financial burden of his business would be excessive if he was limited to solely retailing plants on this site and his land-holding in Kingston Seymour ….
Upon further consideration, it is felt that retailing on the site could still be effectively controlled if the applicant was to be allowed to sell plants 'grown on' in pots that are unable to be grown in the soil on site, such as acid loving varieties. Such a variation in the terms of the Section 52 Agreement would not conflict directly with Policy WRA/S4, given that the plants would spend some time on site being 'grown on'."
"15.44 There has been an increase in recent years in the number of small farm units, market gardens and nurseries involved in retail activities. By their very nature, such businesses are usually located on busy, main roads in the open countryside. Whilst the goods of these enterprises offered for sale are generally home grown, large-scale retailing from the premises particularly of produce not grown on the site and non-garden related items, is contrary to Green Belt and open countryside policy.
15.45 Therefore in order to control the spread of such premises the Council will, where appropriate, either by condition or legal agreement, place a restriction on the range of goods which can be sold. This restriction will seek to ensure that the majority of the retail area shall be given over to produce grown on site and the remainder to consist of either produce grown elsewhere or garden related ancillary goods.
15.46 The sale of bulky items such as sheds, fences, garden machinery can create a visual intrusion and are therefore more appropriately sold within built up areas."
"Planning permission for the use of land or buildings for the sale of goods from agricultural/horticultural units will be granted provided that:
(i) there will be safe and easy vehicular access that will not create a traffic hazard, and
(ii) implementation of the proposal will not harm the character of the surrounding landscape, and
(iii) a majority of the retail area is given over to produce grown on the site and the remainder to consist of either produce grown elsewhere or garden related ancillary goods."
"1. That the only goods sold on at or from the land shall be:
(1) Plants (including trees shrubs seeds bulbs pot and house plants alpine and herbaceous plants and plant material including roots and vegetables and flowers from any source or nurseries including Greenholm Nursery
(2) Composts for all types of plants including peat
(3) Fertilisers and pesticides
(4) Pots and container for all types of plants
(5) Canes stakes and plant ties
(6) Garden tools and gardening aids
(7) Garden sheds conservatories and greenhouses
(8) Greenhouses and conservatory heaters and heating fuels
(9) Garden structures (pergolas) etc fencing gates and items necessary for their construction and preservation
(10) Garden furniture and ornaments
(11) Garden machinery lawnmowers hedge cutters etc and repair facilities
(12) Aquatic sundries ponds ornaments etc
(13) Aquatic livestock – fish
(14) Pet foods and pet sundries
(15) Gardening information – books booklets videos tapes and CDs
(16) Gardening gifts and stationery
(17) Stonework patios paving and concrete products for the garden or indoor gardening aids
(18) Garden leisure equipment
2. No more than 45% of the defined sales area shall be utilized for the sale of goods coming into the categories specified in sub-paragraph 1(6) to 1(18) inclusive of this Schedule in accordance with the plans received by the Council on the 11th November 1992."
"We feel that in this time of rapidly changing retailing practices and fierce competition within the horticultural and gardening industries that it is essential and only fair that we are able to trade under the same planning constraints (106 agreement) as our neighbours Cadbury Garden Centre, who, as you know are permitted to offer for sale a very wide and diverse range of goods. Also in the light of the recent decision at the Appeal Court in London last autumn …. Their Lordships' ruling was that planning permission had been granted for the entire site of 3.77 ha. and the new structure has been given new planning approval under Class A1 of the Town and Country Planning Act which is the same as our neighbour Cadbury Garden Centre."
"… Members did not generally accept that extending the list of goods to be sold under the Section 106 Agreement would lead to an intensification of retailing activity in the countryside thereby adversely effecting [sic] established retail centres in neighbouring villages or that it would lead to a material increase in traffic. It was generally considered by members that given the location of the site next to an existing large retail use, any retail impact or increase in private car journeys would be minimal.
The Director of Planning and Environment drew members attention to the guidance contained in PPG6 regarding the need to concentrate retailing in town centres. The committee was advised that the suggested list of additional items to be sold was so vague that almost any goods could be sold from the site. Therefore, if the committee was minded to extend the range of goods to be sold, further clarification was required with regard to the range of items to be included within the Section 106 Agreement."
"1. Swimming pools, poolcare products and accessories.
2. (Farm Shop) please see attached list … [see below].
3. Ceramics, china and glass. (excluding kitchen-ware and table-ware) Ornaments: cork, copper, wood, fabric, plastic, brassware, stone and shells. Candles, candlesticks and accessories. Picnic-ware. Gardening toys, Children's garden toys, Children's soft toys, (excluding bicycles and Go-carts) Stationary, cards pictures, frames and giftwrap for all occasions.
4. Gardening and Outdoor-pursuits clothing, including walking and fishing but (excluding Mountaineering Climbing and Caving.) Gardening and Outdoor-pursuits equipment including lights, shades, canopies, tents, nets, bags, rods, poles, line and hooks. (excluding Mountaineering Climbing and Caving equipment.)
5. Christmas and other seasonal decorations including New Year's Day, Valentine's Day, Mother's Day, Father's Day, Easter, Guy Fawkes Day, Halloween, and Royal occasions."
"1. Meat & Fish – Fresh, Frozen, marinaded, dried, cured, Cooked, Uncooked, and prepared
2. Vegetables and Fruit – Fresh, frozen, marinaded, tinned, dried and prepared.
3. Dairy – Butter, eggs, milk, cheese, yoghurts, dairy ice creams and any other dairy foods.
4. Preserves, Chutneys and Pickles.
5. Bakery Products – a variety of different breads, cakes and savouries.
6. Dry foods – such as Nuts, crisps, Dried Fruit, Pulses, Flour, yeast, Herbs, Spices, tea, coffee etc, confectionary and other Dehydrated foods.
7. Delicatessen foods – such as Biscuits (sweet and savoury), Oils and Vinegars, Olives, pasta, prepared soups, sauces and meals, country pates and pies.
8. Regional Beers, Wines and Ciders, Fruit Juices, Cordials and other Soft Drinks."
"S106A of the Act provides that a Local Planning Authority that received applications to discharge or modify planning obligations may either refuse them; or, if the obligation no longer serves a useful purpose, discharge it; or if the application would serve a useful purpose equally well with the modifications specified by the applicant, consent to the modifications sought.
The submission seeks to modify the obligation by adding to the list of existing products that are allowed to be sold from the site …. The test set out in the Town and Country Planning Act, in these circumstances is 'whether the obligation continues to serve a useful purpose, but would serve the purpose equally well if it had effect subject to the modifications specified in the application'. It if does then the obligation should be modified.
The useful purpose of this obligation is that it serves to meet planning objectives for the control of retail development in the countryside.
This Committee has indicated through its resolution that the obligation (S106 Agreement) does serve a useful purpose and that subject to clarification on the range/origin and amount/floor area of items able to be sold, the modifications sought should be approved.
Further negotiations have taken place which have resulted in clarified list of products to be sold.
However if members remain minded to approve the application, it is important that they should record that in their view, the Section 106 Agreement continues to serve its original purpose equally well as modified. The resolution should also be subject to the receipt of a plan demonstrating the spatial arrangement of the products to be sold from the retail area."
"Issue (1); Original Purpose of Planning Obligation
The original decision to allow limited retailing from the site was granted having regard to the applicant's willingness to enter into a Section 106 Agreement to control both the extent of a site used for sales, as well as the range of goods to be retailed. This enabled the proposal to comply with Policies S/4 and S/5 of the Local Plan which regulates retail sales from farms, market gardens and nurseries and with Government Guidance contained in PPG6. Without this obligation sales activities on the site could expand to include items normally sold from village shops and town centres which would undermine their viability and vitality and lead to further closures to the detriment of residents.
Issue (2); Does the obligation continue to serve its original purpose?
The obligation continues to be an effective tool in restricting the range of goods that can be sold from the site. The character of the activity is that of a small garden centre with an emphasis on plant sales. This enables the activity to comply with policies S/4 and S/5 of the adopted Local Plan as well as Government advice on retailing in the open countryside.
Issue (3); The Effect of the Proposed Modification
Whilst it is considered that in the light of the previous decisions of Committee, the amended list represents a less generic and more clearly defined set of product lines, there will always remain some ambiguity. This would subsequently lead to enforcement difficulties. The products to be retailed by the 'farm shop' would be incapable of being limited to 'local produce' and this element of the operation could easily grow into a general A1 food outlet selling any foodstuffs which would threaten the vitality and viability of village shops and shopping centres in the surrounding area.
The sale of some products, particularly food, would impact on the vitality and viability of existing shops and centres which local and national retail policy seek to protect. A needs based, sequential approach should be followed for new shopping proposals. The applicant has not sought to justify his proposal on this basis.
An expansion of the retail activity on the site would take the land use beyond what could be termed a garden centre/nursery and would therefore conflict with Policies S/4 and S/5 and other policies/national guidance as outlined above.
A further expansion of retailing activity on the site would generate a greater number of trips and most, if not all, of these would be made by car, given the site's location in open countryside. This operation would be contrary to the principles set out in Planning Policy Guidance Notes 6 and 13, both of which seek to direct such development to locations offering a choice of trip modes. This is reinforced by Policy T/11 of the North Somerset Local Plan which states that Planning Permission would be granted for development only when the proposal inter-alia can be integrated with public transport, cycleway and footpath links.
Issue (4); Would the amended obligation continue to serve its purpose equally well as modified?
The agreement has, as stated above, a useful purpose in controlling retailing development in the countryside. However the agreement as proposed to be modified would not serve that purpose equally as well because it would permit a further expansion of retailing activity. Given this and the potential for enforcement difficulties, it is considered that not all of the list of products proposed by the applicant are likely to prove acceptable. The proposed expansion therefore remains unacceptable."
"Members were advised that the committee was required to demonstrate that it had gone through the appropriate process (as set out in the report) in reaching its decision in order to minimise the chances of a successful legal challenge.
At the invitation of the Chairman, Councillor Mrs Knifton addressed the Committee.
In reconsidering the application, members expressed the view that in reaching its earlier decision the committee had taken into consideration the key issues as required under Section 106A of the Town and Country Planning Act 1990. It was generally agreed by members that this application needed to be considered not in isolation but in the context of the neighbouring retail outlet. Members also referred to appeal decisions by the Planning Inspectorate that had overturned attempts by the authority to restrict expansion of the neighbouring retailer. It was further suggested that the list of products the applicant was proposing to sell from the site was suitably limited when compared to the range of products sold at the neighbouring outlet.
The Committee was advised that it was required to consider the application on the basis of:
1. What the original purpose of the planning obligation was;
2. Whether the obligation continued to serve that purpose;
3. What the effect would be of the modification specified in the application, and
4. In the light of the effect of the modification, whether the planning obligation would continue to serve the purpose as well as it had done previously.
The Committee considered that the planning obligation would continue to serve the purpose as it had done previously because there were many things which could be sold from the site which were not contained in the modified list to be incorporated in the new Section 106 Agreement.
Members remained of the view that the application should be approved, subject to clarification of the range and amount/floor area of products to be sold, and considered that the modified Section 106 Agreement would continue to serve its original purpose to regulate retail sales. It was not generally accepted that the modification would lead to an intensification of retailing activity in the countryside or that it would lead to a material increase in traffic given the neighbouring retail outlet.
RESOLVED: that the application for an expanded range of goods to be included in the Section 106 Agreement be APPROVED as the modified Section 106 Agreement continues to serve its original purpose to regulate retail sales, subject to referral back to the South Area Committee for determination of the list of products and amount/floor area of items able to be sold."
"Given this and the potential for enforcement difficulties, it is considered that not all of the list of products proposed by the applicant are likely to prove acceptable. If the Committee is nevertheless prepared to approve the proposal to extend the range of products that can be retailed from the site it is considered essential that a clause be added to a supplemental agreement limiting the floor space that can be used for this purpose. The applicant has suggested a figure of 870 square metres as the amount of floor space which should be allowed to be used for selling the listed items. The applicant has justified this figure as comprising approximately 10% of central sales area defined in the original planning application for the development of the site …. The figure of 10% of the sales area is considered reasonable …."
"(1) A planning obligation may not be modified or discharged except –
(a) by agreement between the authority by whom the obligation is enforceable and the person or persons against whom the obligation is enforceable; or
(b) in accordance with this section and section 106B.
(3) A person against whom a planning obligation is enforceable may, at any time after the expiry of the relevant period, apply to the local planning authority by whom the obligation is enforceable for the obligation –
(a) to have effect subject to such modifications as may be specified in the application; or
(b) to be discharged.
(6) Where an application is made to an authority under subsection (3), the authority may determine –
(a) that the planning obligation shall continue to have effect without modification;
(b) if the obligation no longer serves a useful purpose, that it shall be discharged; or
(c) if the obligation continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, that it shall have effect subject to those modifications.
(7) The authority shall give notice of their determination to the applicant within such period as may be prescribed …."
"(1) Where a local authority –
(a) fail to give notice as mentioned in section 106A(7); or
(b) determine that a planning obligation shall continue to have effect without modification,
the applicant may appeal to the Secretary of State.
(2) For the purposes of an appeal under subsection (1)(a), it shall be assumed that the authority have determined that the planning obligation shall continue to have effect without modification …."
i) Plainly there was no final decision having legal effect under section 106 A. Under the terms of the resolution, a final decision will arise only when the South Area Committee has determined the list of products and amount/floor area of items able to be sold. The claimant could have waited until such a determination before mounting a challenge.
ii) It does not follow, however, that the claimant is necessarily precluded from mounting a challenge at this earlier stage. There is an analogy, though the parallel is not exact, with the ordinary procedures concerning the grant of planning permission. A resolution to grant planning permission subject e.g. to the conclusion of a satisfactory section 106 agreement can be described as a decision in principle or a preliminary or provisional decision. It is to be distinguished, however, from the actual grant of planning permission; and the resolution can be revoked or varied at any time prior to the grant. R (Burkett) v. Hammersmith and Fulham London Borough Council  1 WLR 1593 establishes that time for applying for judicial review runs from the grant of permission, but does not rule out the bringing of a challenge at an earlier stage if the court in its discretion considers that a useful purpose would be served by such a challenge. Such challenges have been entertained in appropriate cases.
iii) I do not attach much significance to the council's point that, in the absence of notification of a final decision within the time laid down, there is a deemed refusal triggering a right to appeal to the Secretary of State under section 106B. A similar right of appeal, based on a deemed refusal, exists where a local planning authority has resolved to grant planning permission but has not made the grant within the time laid down. The existence of that right of appeal does not preclude a challenge to the resolution to grant planning permission. Of course, if a right of appeal has been exercised, any challenge to the authority's resolution becomes academic, which will generally provide a sufficient reason for refusing to entertain it. In the absence of an appeal, one looks to see whether, although there has been a deemed refusal within the terms of the statute, there has in practice been a decision that can form the sensible subject of challenge.
iv) So in my view there is no automatic bar to a challenge at this stage. It is necessary to consider what has been resolved and whether a useful purpose would be served by allowing that resolution to be challenged in advance of a final decision.
v) In this case I am satisfied that the resolution amounts to a decision in principle to approve the application to expand the range of goods to be sold under the section 106 agreement. What has been left over to the South Area Committee is a determination of details – a precise list of goods to be included and the amount/floor area of such items. The basic question whether a modification of the kind proposed meets the statutory test for approval has been given an answer in the affirmative. Looking at the terms of the resolution, the discussion that preceded it, and the way in which it has subsequently been viewed by planning officers and the South Area Committee, I do not think that it is to be read simply as a resolution that, consistently with the purpose of the section 106 agreement, some extension to the list of goods could be permitted.
vi) Whether a useful purpose is served by a challenge to the decision depends on consideration of the substantive case advanced by the claimant. For that reason I did not invite the parties to take the question of prematurity as a preliminary issue at the hearing and I shall not express my own conclusion on it until I have examined the substantive issues in the case.
Substantive issues: the claimant's case
i) The issue at the forefront of their minds, as appears from the views they initially expressed, was a comparison between the Greenholm site and the claimant's neighbouring outlet. The fact is, however, that the Greenholm site is subject to greater restrictions than the complainant's site: Mr Elvin took me to the latest decision letter concerning the claimant's site in order to show that it has the benefit of a fall-back planning permission for open retail use which underlies the different planning history of the site and explains why, exceptionally, the site is subject to fewer restrictions. Members had to focus on the restrictions imposed on the Greenholm site by the section 106 obligation and on the application of the specific questions that arise under section 106A in relation to those restrictions.
ii) Members were then reminded of the relevant questions under section 106A, but proceeded to express a view in terms that badly paraphrased the key question ("the planning obligation would continue to serve the purpose as it had done previously") and to give a reason that could not sensibly answer the question whether the modified obligation would serve the purpose equally well ("because there were many things which could be sold from the site which were not contained in the modified list to be incorporated in the new Section 106 agreement").
iii) In concluding that the application should be approved subject to clarification of certain matters, members considered that the modified obligation "would continue to serve its original purpose to regulate retail sales". The same phrase is repeated in the terms of the resolution itself. The correct question, however, was whether it would regulate retail sales in a way which served equally well the purpose of promoting the relevant countryside policies, in particular Policy S5: it was to achieve compliance with that policy that the section 106 obligations were imposed in the first place, as is clear from the officers' report which led to the 1991 permission and section 106 agreement. In looking at the general question of regulating retail sales, members were simply not addressing the right question or applying the statutory test.
iv) Thus Mr Elvin submits that taking a broad view and reading it fairly, the minute shows that members failed to understand or to apply the statutory test. The reason, he suggests, is that they were attracted and led astray by the argument that the Greenholm site should be treated in the same way as the claimant's site.
Substantive issues: the council's case
MR JUSTICE RICHARDS: I am handing down judgment in this case. For the reasons given in the judgment, the claim succeeds and the decision under challenge will be quashed.
MR FORSDICK: I am grateful, my Lord. I make an application on behalf of the claimant for an order for costs.
MR JUSTICE RICHARDS: Yes.
MR FORSDICK: There is a dispute as to the assessment of costs, and given the sums involved we accept that it should go for detailed assessment.
MR JUSTICE RICHARDS: Yes.
MR FORSDICK: There were two grounds effectively, two decisions challenged originally, the glasshouse application and the range of goods application. My Lord will have seen from the claim form that the substantive history was common to both and required to be set out in respect of both applications for judicial review. The glasshouse application merited a couple of paragraphs at the end of the claim form and just one separate ground of challenge. In response, the grounds of opposition on behalf of the Council dealt again in common with the range of goods application until the last two paragraphs of the witness statement. So a very small amount of additional work was caused by the glasshouse application.
MR JUSTICE RICHARDS: Plainly I cannot resolve what costs are attributable to the glasshouse application.
MR FORSDICK: I understand that.
MR JUSTICE RICHARDS: I can say, and I do say and put it on the record, that the figure that is claimed in the schedule strikes me as being excessive as a figure for costs for the application that I have dealt with. I would say it is roughly twice as high as it should be.
MR FORSDICK: I understand the position of the court and I think that was the position taken by the other side. Clearly, those instructing me will have to look at the schedule and make sure that it is correct and submit it to assessment. My Lord, the reason I have raised the glasshouse application and the range of goods application is there is an issue as to what ought to happen with the costs of the glasshouse application. What I suggest is there are two options: one is for my Lord just to adopt a broad brush reduction in the costs awarded in favour of the claimant; the other is to award the claimant its costs of the substantive case but to award the Council its costs of the additional costs in relation to the glasshouse application. Procedurally it may be simpler to adopt the percentage reduction. I understand my learned friend will ask my Lord to take the other route, which is to award the claimant costs subject to (inaudible) and to award the Council their costs on the glasshouse application.
MR JUSTICE RICHARDS: Yes.
MR AUBURN: My Lord, thank you. We would say that in relation to the glasshouse application it is right that you make an order for costs in favour of the local authority. This was a separate challenge to a separate decision.
MR JUSTICE RICHARDS: And where there are mixed costs it will be for the costs judge to apportion appropriately.
MR AUBURN: Yes. It is not a matter we would hope to determine today. I would simply ask that you make the decision in principle that the local authority --
MR JUSTICE RICHARDS: You accept that the Council should pay the claimant's costs of the range of goods application.
MR AUBURN: I have a very short submission to make in relation to the range of goods application.
MR JUSTICE RICHARDS: Well, let me hear that submission.
MR AUBURN: My Lord, if I can just make one final point on the glasshouse application, I would point out that it was abandoned late in the day.
MR JUSTICE RICHARDS: Yes.
MR AUBURN: In relation to the range of goods application, a short point. The fact that your Lordship said that the claim could legitimately be brought does not mean that it warrants an award of costs, and I would say that it is most appropriate that there be no order for costs in relation to the range of goods application for this reason. It was really worked out effectively on the day of the hearing that section 106A has an all or nothing interpretation. To be frank, this was not something that either side had brought up or appreciated prior to that. I think I can be frank in saying that.
MR JUSTICE RICHARDS: I think I indicated that in my judgment.
MR AUBURN: Yes. The reality of the matter is that once it is appreciated that section 106A has that interpretation, then, in reality, we were bound to refuse the application, so the point is that if either side had appreciated this --
MR JUSTICE RICHARDS: Not the way Mr Straker argued it at the hearing. He did not say, "Hands up, subject to the prematurity challenge".
MR AUBURN: The point does fit in with prematurity to the extent that if they had waited they could only have got a refusal. The point is still that they need never have come to court. While I fully accept your Lordship's decision on prematurity, in relation to costs the point is they need never have come here, and in fact they would not have been prejudiced in any way by waiting to get what, on the law, must have been an inevitable refusal. If they waited until then there would have been no need. My Lord, that is all I have to say on that. You will know, as local authority, we are effectively caught between two parties in the situation and probably would have been challenged whatever we had done. While, obviously, we tried to get it right, your Lordship has said we did make a mistake, but I would say that frankly we would have been challenged whatever we had done in this matter.
MR JUSTICE RICHARDS: I hope that the guidance I have given in the judgment may assist with regard to the future consideration of this matter. That is your submission on costs. Thank you very much.
Anything in reply?
MR FORSDICK: Just simply, my Lord, the position was that we offered on two occasions to adjourn the application for JR pending the final determination of the Council on the final limb. That was rejected twice, at page 158 and 160 of the bundle. For those reasons we attended and were successful on the prematurity point.
MR JUSTICE RICHARDS: Thank you very much.
MR AUBURN: Just in relation to that, there were offers on either side and you will know that we also offered that the matter be determined on the papers to avoid the need for an oral hearing.
MR JUSTICE RICHARDS: The defendant will pay the claimant's costs of the range of goods application. I rejected the submissions made as to prematurity. I found the decision was unlawful for the reasons stated in my judgment. I see no reason in all the circumstances for departing from the ordinary rule that costs should follow the event.
The claimant will be ordered to pay the defendant's costs of the glasshouse application. Again, it seems to me entirely right, the application having been brought and then abandoned, that the claimant should pay the costs of that application.
In each case there will be detailed assessment if the costs cannot be agreed. I am not going to deal with the matter by way of some sort of percentage apportionment because I do not feel able to do so on the information I have, and, in any event, I think that this is a matter that if it cannot be agreed, which I hope it can, had better be looked at with some care by a costs judge.
I repeat what I said in the course of submissions that the figure that is put forward in the schedule before me of something in excess of £27,000 seems to me to be excessive and getting on for twice a reasonable figure for the costs of the range of goods application. However, that is a matter for determination, if necessary, by a costs judge. I can take it no further than the view I have expressed.
MR AUBURN: My Lord, there is just one very short matter in relation to appeal. As local authority, really the decision does need to go to a committee finally, but I will ask for permission to appeal from your Lordship shortly and simply to say that the Court of Appeal has stressed on occasions that parties should avoid going to court, particularly in judicial review, unless it is absolutely necessary, and this was not a case in which it was necessary. I would ask for permission to appeal from your Lordship. Irrespective of your decision on that, I would ask for 28 days to file an appellant's notice, an extension of time. The purpose of that is simply to give the Council and the committee time to meet and give the matter mature reflection.
MR JUSTICE RICHARDS: Yes. I refuse permission to appeal on the grounds that there is no real prospect of success and no point of general importance. I will grant you your extension of 28 days for seeking permission from the Court of Appeal if so advised.
I should perhaps mention, I am not going to put it on the form, but for your purposes, that of course a decision whether to entertain an application of this sort, as indicated in my judgment, does involve a measure of discretion, which is a point that I have no doubt that the Court of Appeal would have in mind if you sought to take it to the Court of Appeal. Thank you very much.