England and Wales High Court (Administrative Court) Decisions

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

		Leeds Administrative Court 1 Oxford Row, Leeds LS1 3BG
		23 June 2014

Mr Justice Stewart:

Introduction

1. The Claimant ("C") seeks an order pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), quashing the First Defendant's ("D1") decision dismissing an appeal brought by C against the Second Defendant's ("D2") refusal of planning permission by a notice dated 19 September 2012. The application was for the erection and 25 year operation of a wind turbine with a maximum blade tip height of 90 metres and up to 20 metres micro siting etc on land at the former Catwick Grange landfill, Hornsea Road, Beverley, East Yorkshire.
2. The Inspector's report upon which D1 acted is dated 18 November 2013 following a hearing and site visit on 6 August 2013.

Planning Materials

3. Material extracts of relevant documents are set out in the Appendix to this judgment. They are:

(i) Circular 11/95: Use of Conditions in Planning Permission

(ii) Letter dated 25 November 2002 from the office of the Deputy Prime Minister (the ODPM letter).

(iii) Overarching National Policy Statement for Energy (EN-1)

(iv) The National Planning Policy Framework (NPPF)

(v) The Beverley Borough Local Plan (June 1996) (BBLP)

(vi) The National Policy Statement for Renewable Energy Infrastructure (EN-3)

Ground 1

4. This ground is as follows:

"Failed to take into account a material consideration, namely advice contained within the letter of the Office of the Deputy Prime Minister dated 25 November 2002 which amended advice in paragraph 40 and the footnote on page 16 of the Annex of Circular 11/95 on the Use of Conditions in Planning Permission"

5. The background to the challenge in Ground 1 is the effect of the proposal on safety provided by the Air Defence Radar Service at Remote Radar Head Staxton Wold. The Inspector noted in paragraph 6 of the Inspector's Report (IR) that it was not disputed that the turbine would be in the direct line of sight of the radar at Staxton Wold, some 33.1 kilometres from the site. The MoD was present at the hearing and confirmed its objection of July 2012 to the proposed turbine primarily due to the cumulative impact taking into account the other 16 wind turbines in the area. (IR paragraph 7 and 8).
6. The central paragraphs of the IR relevant to this ground are paragraphs 9 – 12 which I will set out below. These state:

"9. The appellant has suggested possible mitigation measures by the application of 'Non-Auto Initiation Zones' (NAIZs) over the proposed turbine. However, the MOD has stated that it requires the mitigation to be site specific to the proposal and it has not received a site specific mitigation proposal which it can assess to determine whether the proposal could be mitigated. On this basis, the MOD has maintained its objection.

10. Section 5.4 of the National Policy Statement EN-1 refers to impacts from the development of energy infrastructure on civil and military aviation and defence interests. The appellant has referred to paragraph 5.4.18 which indicates that, where proposed energy infrastructure development would significantly impede or compromise the safe and effective use of civil or military aviation or defence assets, Grampian conditions could be considered which relate to the use of future technological solutions to mitigate impacts. However, the paragraph also suggests that, where technological solutions have not yet been developed or proven, the likelihood of a solution becoming available within the time limit for implementation of the development consent needs to be considered. The MOD has indicated at the hearing that a technological solution has not been developed or proven for the current radar at RRH Staxton Wold and that there may not be a solution.

11. The appellant has supported the use of a Grampian condition in the current appeal by reference to other appeal decisions, including a recent decision on the proposed erection of 9 wind turbines at Fraisthorpe. However, that appeal decision indicates that an agreement had been entered into with the MOD for the design and implementation of an identified and defined mitigation solution. In the current appeal, the appellant has not put forward any such mitigation solution for the MOD to approve. Therefore, no direct comparisons can be made.

12. In the case of the current appeal, the appellant has not demonstrated that its suggested use of NAIZs or other technological solutions following the trials and modelling of the new TPS-77 AD radar capabilities would be able to be successfully applied, as no site specific mitigation proposals have been put forward. As such, there is nothing before me to demonstrate that a solution to ensure that the effects on the radar would be adequately mitigated would become available within the time limit for implementation if I granted planning permission. Therefore, I find on this main issue that the imposition of a Grampian condition would not offer an acceptable solution and there is insufficient evidence to show that the proposal would not cause any significant harm to the safety provided by the Air Defence Radar Service at RRH Staxton Wold."

7. A Grampian condition, as the Inspector stated by way of footnote in the IR, is a negative condition that prevents the start of a development until specific actions, mitigation or other developments have been completed.
8. The approach to a challenge such as this must be informed by certain important previous decisions.

(i) In South Somerset DC v David Wilson Homes [1993] 66 P and CR 83 at page 85 the Court of Appeal said:

"The Inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the Inspector's reasoning. A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the Inspector by one of the representatives of the parties and he wanted to make clear that he had not overlooked it. Sometimes his statement of a policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the Inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy."

Earlier in the judgment Hoffman LJ approved a previous statement by Forbes J in the following terms:

"It is no part of the court's duty to subject the decision maker to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to the parties, they are well aware of the issues involved and of the argument employed at the enquiry, it is not necessary to rehearse every argument relating to each matter in every paragraph."

(ii) In similar vein is the general statement by Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment [1993] 66 P & CR 263 at 271 – 272 where he said:

"There are dangers in over-simplifying issues of this kind as also of over-complicating them. I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."

(iii) Finally in R (Newsmith Stainless Limited) v Secretary of State for Environment Transport and the Regions [2001] EWHC 74 (Admin) Sullivan J (as he then was) said:

"6 An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

7 In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments… Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

8 Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task…"

9. C's submission is that the MoD confirmed at the hearing that they had not been aware of the ODPM letter dated 25 November 2002 amending the advice in paragraph 40 in the footnote on page 16 of Circular 11/95. The MoD's position was one of principle, based on a desire to see any wind farm operator in general, and the Claimant in particular, submit details of specific and certain site specific mitigation for wind energy development before considering agreement to imposing a planning condition.
10. Further C submits that MoD said at the hearing that it could not and did not say that there were no prospects of satisfactory mitigation becoming available during the lifetime of the planning permission.
11. C relies upon the ODPM letter of 25 November 2002 which amended paragraph 40 Circular 11/95 such that a Grampian condition may be imposed on a planning permission, but where there are no prospects at all of the action in question being performed within the time limit imposed by the permission, negative conditions should not be imposed. In addition "A policy of refusing permission where there is no reasonable prospects of planning conditions being met could be lawful, but sound planning reasons for the refusal should be given and it should be made clear that this was only a starting point for consideration of cases."
12. It seems to me that the critical finding was that in paragraph 12 of the report, namely "there is nothing before me to demonstrate that a solution to ensure that the effects of the radar would be adequately mitigated would become available within the time limit for implementation if I granted planning permission."
13. With that factual finding as the backdrop, I reject C's case on Ground 1 for the following reasons:

(i) The Inspector specifically took into account section 5.4 of EN1 and made detailed reference to paragraph 5.4.18 (IR paragraph 10). There is no challenge to the Inspector's application of policy EN1. This is the specific policy which the Inspector was required to take into account.

(ii) It is inconceivable that the Inspector did not have due regard to the ODPM letter of 25 November 2002 and how it amended Circular 11/95. There had been evidence and submissions based on these documents and the letter is listed at the end of the IR as document number 3.

(iii) The fact that the Inspector did not make specific reference to the ODPM letter or Circular 11/95 does not assist C. (See the South Somerset and Clarke Homes cases).

(iv) There is no inconsistency between EN1, paragraph 5.4.18 and the ODPM letter; this is apparent from paragraph 4.1.7 of EN1 – a matter of which the Inspector would undoubtedly have been aware.

(v) Therefore there was no failure to take into account a material consideration.

Ground 2

14. This ground is as follows:-

"Misunderstood fact, law and policy relating to the imposition of Grampian conditions and accordingly failed to provide any or any adequate reasoning as to why a Grampian condition would not offer an acceptable solution."

15. The classic case on a reasons challenge is South Bucks District Council v Porter [2004] 1WLR 1953 where Lord Brown said at paragraph 36:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

16. There is fundamental disagreement as to the meaning of ODPM Letter of 25 November 2002. According to C, it means that unless it can be said that there are no prospects at all of satisfactory mitigation becoming available during the lifetime of a planning permission, then permission will be given subject to the imposition of a Grampian condition. According to D:

(i) There is a general discretion whether or not to grant planning permission subject to a Grampian condition.

(ii) If there are no prospects at all of the condition being satisfied within the time limit imposed by permission then a Grampian condition should not be imposed.

(iii) A policy of refusing permission where there is no reasonable prospects of planning conditions being met can be lawful, but sound planning reasons for the refusal should be given, and it is only a starting point for consideration of cases.

17. I rule in favour of D on this point. Circular 11/95 is on the use of conditions in planning permission. There is nothing in it or in the ODPM Letter which states that provided that there are some prospects of mitigation within the time limit imposed by permission of a negative condition being complied with then permission must be granted. The background is that the House of Lords in British Railways Board v Secretary of State for the Environment and Hounslow LBC [1994] JPL 32 established that the mere fact that a negative condition appears to have no reasonable prospects of fulfilment does not mean that planning permission must necessarily be refused as a matter of law. The Secretary of State interpreted that in Circular 11/95 as meaning that there could be a lawful policy that there should be at least reasonable prospects of the action in question being performed within the time limit imposed. As a result of the case of Merritt v SSETR and another [2000] 3PLR 125 and the consequent ODPM Letter, the policy was amended to say that where there are no prospects at all then negative conditions should not be imposed but, albeit that policy is lawful, sound planning reasons for the refusal should be given.
18. D accepted that if the letter is to be construed as C submitted then the decision must fall. However, in my judgment there is nothing in the ODPM Letter which takes away the decision maker's discretion save that, if he was minded to impose a Grampian condition, he should not do it if there were no prospects at all of it being fulfilled within the time limit imposed by the permission, [subject to the proviso that he should not merely follow the policy but also give sound planning reasons if that was his only reason.]
19. In support of this are the words of Lord Keith in his speech in BRB v The Secretary of State [1993] where he said:

"What is appropriate depended on the circumstances and was to be determined in the exercise of the discretion of the planning authority. But the mere fact that a desirable condition appeared to have no reasonable prospects of fulfilment did not mean that planning permission must necessarily be refused…"

In the present case the Inspector came to the planning judgment on all the evidence. An element of this was that there were no site specific mitigation proposals, but the decision to which he came was one on the consideration of all the evidence.

20. C alleges that the Inspector laboured under a mistake of fact when he said in paragraph 10 IR "the MoD has indicated at the hearing that a technological solution has not been developed or proven for the current radar at RRH Staxton Wold and that there may not be a solution."
21. I am not prepared to find that the Inspector was labouring under a mistake of fact. I say this for the following reasons:

(i) The key finding is in paragraph 12 IR. The Inspector was entitled to look at the evidence in the round and he considered that evidence primarily in paragraph 8, 9 and 11 IR.

(ii) C submits that the mistake of fact in paragraph 10 IR was that, contrary to what the Inspector found, a technological solution clearly had been developed for RRH Staxton Wold within the meaning of paragraph 5.4.18 of EN1 and was already being deployed in respect of a development at Fraisthorpe. The submission is that the Inspector was wrong when he said that no direct comparisons could be made with Fraisthorpe. However I am not prepared to find that there was any mistake of fact when the Inspector, having heard all the evidence, came to the conclusion that the NAIZs solution for Fraisthorpe was not a direct comparator for a different scheme in a different place at a different time.

(iii) In order to make good a challenge based on mistake of fact there are a number of essential criteria. These are set out in the decision in E v Secretary of State for the Home Department [2004] QB 1044 at paragraph 66. Two of them are: "First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable."

C's case on mistake of fact does not satisfy these criteria.

Therefore Ground 2 fails. There was no mistake of fact, law or policy. Nor is the reasoning inadequate. Once it is seen that the Inspector was correctly interpreting the law and policy, the reasons are clear.

Ground 3

22. This ground is as follows:

"Failed to provide any or any adequate reasoning as to how he concluded that the proposed development would have an unacceptable moderate adverse effect on the appearance of the surrounding area overall and/or acted perversely."

23. The Inspector dealt with "Character and Appearance" in IR paragraphs 13 – 25. He referred to C's and D2's documentation (IR paragraph 14 and 15) and his own visit (paragraph 16).
24. The Inspector made a number of findings favourable to C, namely:

(i) The turbine would not appear as a significant feature in views from the Wolds Area of Landscape Protection (IR paragraph 17).

(ii) The proposal would result in no material harm to the special interest of the heritage asset or the settings in respect of the views from the centres of the villages of Leven, Brandesburton and Catterick. (IR paragraph 18).

(iii) The Council were right not to object to the proposal based on the visual impacts on the views from the northern edge of Leven (IR paragraph 19).

(iv) There was insufficient evidence to show that the proposal would result in any significant cumulative landscape impacts (IR paragraph 24 IR).

25. The Inspector presented his findings as to negative impacts in a measured and balanced way. They are to be found in paragraphs 20 – 23 of IR as follows:

"20. Views of the turbine from the surrounding roads would be intermittent and would mainly be seen by passing motorists who represent low sensitivity receptors. They would be screened by the vegetation and buildings alongside the roads. As such, the visual intrusion experienced would be limited. The turbine would be visible from stopping places on some of the roads, such as on the A165, but it would be seen in the context of the road traffic and other man made features and buildings and, in some of these views, would be screened by intervening vegetation.

21. The wind turbine would be clearly visible from many of the houses in the area and in particular those on the northern edge of Leven. It would be most apparent from north or north east facing first floor windows where there is limited screening from garden boundary treatment. However, most of these views include man made features, such as telecommunications infrastructure and the proposed wind turbine would be far enough away from these properties to prevent it from appearing overbearing or dominant. Furthermore, most of the windows of these properties do not directly face the site of the turbine. Therefore, although these are regarded as potentially highly sensitive receptors, any adverse effects on views from these properties and residential amenity would be slight to moderate, but not significant.

22. The turbine would be visible from all of the sites that I visited. I agree with the Council these sites would be medium sensitivity receptors due to the temporary nature of their occupancy and the activities that are carried out on them. At my site visit, I observed that existing mounding and planting and the relative orientation of the receptors would have a significant mitigating effect on the visual prominence of the turbine from these sites. Whilst the turbine would be clearly visible from some locations within the site, no substantive evidence has been provided to demonstrate that this visual presence would have any significant harmful effect on the existing use of the sites for tourism.

23. I agree with the Council's officer in the Committee Report that views from the public footpath network would be intermittent as a result of the topography of the landscape and existing vegetation. Although the turbine would appear as large, prominent structure in some of these views, it would generally be screened by the trees and hedgerows that line the footpaths. As such the users of the footpaths, who are considered to be medium to high sensitive receptors, would experience a slight to moderate adverse effect."

26. The finding the Inspector made based on the preceding paragraphs is in paragraph 25 IR where he said this:

"Based on the above, I find on this main issue that the proposal would result in moderate harm to the landscape in the immediate vicinity, as the height of the proposed turbine structure would make it stand out as a highly noticeable new feature on the skyline in some views, particularly from residential properties and the public footpath to the north of Leven. As such, it would fail to accord with Beverley Borough Local Plan 1996 (BBLP) Policy E3, as it would not minimise its visual impact on the surrounding areas. However, it would not cause any significant harm to wider views or character of the surrounding area, as the topography and vegetation would ensure that it would not dominate the landscape. It would also accord with BBLP Policy IN 13, as it would not significantly detract from the character, appearance or amenity of the area or conflict with neighbouring uses including tourism. "

In his conclusions paragraph (IR 27) the Inspector said "…the proposal…would have a moderate adverse effect on the appearance of the surrounding areas. As such, it would fail to represent sustainable development in accordance with the Framework. The benefits of the proposal from the contribution that it would make towards meeting the national targets for renewable energy do not outweigh the above harm."

27. The suggestion that the Inspector failed to provide intelligible and adequate reasons is, in my judgment, misplaced. The Inspector gave full reasoning and it cannot properly be said, consistently with the citation which I have set out from the South Bucks case, that C "can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
28. C submits that it is unable to understand the reasoning of the Inspector as to:

(i) How a finding of moderate harm overall was reached.

(ii) How a finding that the proposed development would not accord with BBLP Policy E3.

29. I find that it is clear in the Inspector's report (IR para 25) that there would be a visual impact. He specifically said this was particularly from residential properties and the public footpaths to the north of Leven. This picked up his findings in paragraphs 21 and 23 IR. The fact that paragraphs 21 and 23 are couched in moderate language does not mean that the Inspector was required to find other than he did in para 25. He had considered all the evidence and had visited the relevant sites. The finding he made that there would be moderate harm to the landscape in the immediate vicinity was appropriate and justified in planning terms.

C complains that in IR paragraphs 15 and 16 the Inspector drew a distinction between landscape and visual impact. Then in IR paragraph 25 he referred to "moderate harm to the landscape", when the only harm to which he had referred was that of visual impact. It is correct that when dealing with C's "Landscape and Visual Impact Assessment" the Inspector did refer to "Landscape Character". He noted that there was no indication from Council Officers of any harm the proposal would cause the character of the area. Then, in paragraph 16 he went on to consider the visual impact of the proposals.

30. To anybody reading the first sentence of IR paragraph 25 in a common sense way, given the preceding paragraphs, it is abundantly clear that the Inspector concluded that there would be moderate harm to the landscape in the sense that there would be an adverse visual impact rather than an adverse impact on the character of the area.
31. In similar vein C drew a distinction between the words "in the immediate vicinity" and "the appearance of the surrounding area" (IR paragraphs 25 and 27). Again I regard it as clear that the Inspector meant that the moderate harm to the visual impact on the landscape in the immediate vicinity was the same, or gave risk to, as the moderate adverse effect on the appearance of the surrounding area. I remind myself of the words in the South Bucks case "Decision letters must be read in a straight forward manner" and in South Somerset "It is no part of the court's duty to subject the decision maker to the kind of scrutiny appropriate to the determination of the meaning of a contract or statute".
32. I turn now to BBLP Policy E3. It is a Development Limits and Open Countryside Policy. It says that planning permission will be granted "only if the proposal is appropriate to a rural area and any built development is located, designed and landscaped to minimise the visual impact."

Once the Inspector found, as he was entitled to, that there was moderate visual harm, then it is unsurprising and entirely justified that he found a breach of BBLP Policy E3.

33. Finally, C alleges that the Inspector's finding in IR paragraph 25 that the proposal accorded with BBLP Policy IN13 is inconsistent with the finding that it failed to accord with BBLP Policy E3.
34. I accept that there is some difficulty with the Inspector's wording here. He found that the development accorded with IN13 in that it would not "significantly detract from the character, appearance or amenity of the area…" Although it is entirely consistent with the rest of IR that the development would not significantly detract from the "character...or amenity of the area", the problem word is "appearance". It may well be that the Inspector has made an error here. However, such error as there is would be an oversight in not finding that the "appearance" would be significantly detracted from by the proposal. Everything else in the preceding words at paragraph 25 and the paragraphs before that underline that the Inspector, after weighing all the pros and cons, concluded as a matter of planning judgment that there would be moderate harm to the visual amenity. He gave entirely comprehensible reasons for this before finishing with the words "as the height of the proposed turbine structure would make it stand out as a highly noticeable new feature on the skyline in some views…". The general thrust of the Inspector's reasoning should not be undermined by what appears to have been an oversight in relation to the word "appearance" in IN13.

Ground 4

35. This ground is as follows:

"Failed to provide any or any adequate reasoning as to how, by reason of causing a moderate adverse effect on the appearance of the surrounding area, the proposed development failed to represent sustainable development in accordance with the National Planning Policy Framework."

36. The core of this submission is that C is unable to understand how moderate harm to the landscape could render the proposed development unsustainable, particularly when it is recognised in paragraph 2.7.48 of EN-3 that any commercial wind turbine will always result in significant landscape and visual effects for a number of kilometres around a site.
37. This ground proceeds on a mistaken premise. The Inspector did not rely only on the moderate adverse effect on the appearance on the surrounding areas. He relied specifically and primarily on the unacceptable effect on the safety provided by the Air Defence Radar Service at RRH Staxton Wold. Paragraph 27 IR makes it clear that there were two elements in his decision that the proposal did not represent sustainable development in accordance with NPPF.
38. C refers to a number of paragraphs in NPPF. For sake of completeness they are set out in the Appendix. None of those paragraphs included paragraph 164 which I have also set out and which refers to defence and national security. This paragraph is under the section entitled "Plan – Making" and the sub sections "Local Plans" and "Using a Proportionate Evidence Base." It is to be noted from paragraph 6 of the NPPF that "the purpose of the planning system is to contribute to the achievement of sustainable development. The policies in paragraphs 18 – 219, taken as a whole, constitute the Government's view of what sustainable development in England means in practice for the planning system."
39. There is no merit in this challenge because:

(i) The Inspector relied upon both the defence issues and the moderate adverse effect on the appearance of the surrounding area as reasons.

(ii) The fact that paragraph 2.7.48 of EN3 refers to the fact that turbines will always cause significant landscape and visual effects does not detract from the Inspector's finding on the specific affects on this area which, in conjunction with the defence reasons, led him to a justifiable conclusion that the turbine was not sustainable development in accordance with NPPF.

(iii) This was a planning conclusion to which the Inspector was entitled to come; there is no prejudice to C since there was no failure to provide an adequately reasoned decision. All of the cases set out earlier in this judgment are relevant to this conclusion, namely: Newsmith, South Somerset, Clarke Homes and South Bucks.

Conclusion

40. For all the above reasons this application fails.
APPENDIX