England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/11/2015

Mr Justice Garnham:

Introduction

1. The Five Links estate in Basildon, Essex, has been undergoing substantial re-development. As part of that redevelopment, Basildon Borough Council, the council with responsibility for the estate, decided to rename a number of the streets on the estate. More than 400 residents, representing about 50% of the population of the estate, sent letters of objection. Three of them appealed against the Council's decision to the magistrate's court. The District Judge upheld that appeal, setting out his reasoning in a lengthy written judgment dated 24 April 2015.
2. The Council now appeals to this Court by way of case stated. The District Judge has stated a case, in a document dated 30 June 2015, at the conclusion of which he sets out a number of questions for the opinion of the Court. I set out the questions at paragraph 20 below. In order to understand those questions, and the answers I give to them, it is necessary to know a little more about the history of this case. I take this background substantially from the judgment of the District Judge; it has not been suggested that that account was inaccurate.

The History

3. The Five Links estate was built in the late 1960s and early 1970s. It was largely pedestrianised, with car parking and garage facilities around the perimeter. Perhaps as a result of that layout, the estate developed a reputation for car crime and anti-social behaviour. For a time it was known locally as "Alcatraz".
4. Since about 1997 the estate has been undergoing major redevelopment. Apparently some £8 million has been spent on the project, which has involved the replacement of the perimeter parking with parking within the estate. An underground car park and many properties have been demolished and a number of new roads and many new homes constructed.
5. As part of this redevelopment, the Council has published a number of proposals for the renaming of streets, which, as the District Judge put it, "were opposed by residents with varying outcomes". On 16^th June 2005, for example, Basildon Magistrates Court allowed an appeal, largely on technical grounds, from the residents of a district called "Brendon", against renaming of streets in their area as part of phase 1 of the works. The proposals were reformulated and republished. An appeal against that proposal was rejected on 24 January 2006, the Justices concluding that "the council has acted reasonably in relation to the road renaming and in accordance with its statutory duty".
6. I am concerned with the renaming of streets affected by phase 3 of the work. The Council decided to rename streets in that phase in 2006, and again in 2009, but neither decision was acted upon. The physical work on phase 3, involving the demolition of garages and residential properties and the construction of 186 new homes, began in 2008. On 10 July 2014 a decision was made to rename, and renumber, 533 properties in four streets covered by phase 3, namely Somercotes, Somercotes Court, Mellow Pergess and Newberry Sides.
7. The power to rename street names is provided by Section 18 of the Public Health Act 1925. In Basildon that power has been delegated by the Council to Mr Garry Edwards, Head of Street Scene and Leisure Services, acting in consultation with the current Cabinet Member for Environment and Community, Councillor Terri Sargent. All of the 533 affected would lose their current street name. All would have a new house number and a new post code.
8. By letter 16^th September 2014 Mr Edwards purported to give the affected residents notice of the Council's intention to proceed with the next phase of the renaming and renumbering. Notices were posted in the area but the period of notice was insufficient and the process had to be repeated. The effective period of notice expired on 27^th October 2014.
9. On 16^th October 2014 Councillor Frank Ferguson proposed a motion at the meeting of Basildon Borough Council which called for the withdrawal of the proposed order for the renaming and renumbering of the 533 properties. The motion was passed by 22 votes to 18. It is accepted, however, that that motion had no legal consequence and in particular did not overturn the decision made by Mr Edwards and Councillor Sargent, to rename the streets.
10. On 15^th October 2014 the three complainants lodged their appeal with Basildon Magistrates Court. On 9^th January 2015 the Magistrates issued a summons and on 24^th April 2015 the appeal was heard by District Judge Gareth Branston.
11. Mr Branston's judgment is an impressive piece of work. It runs to 112 paragraphs and provides a careful and thoughtful approach to the facts, to the applicable law and to the analysis which District Judge Branston was called upon to make. The question for me is whether he was right in the approach he adopted and, if so, in the conclusion he reached.

The Statutory Scheme

12. The power to rename streets is provided by the Public Health Act 1925. Section 18 of that Act provides as follows:

"(1) The urban authority by order may alter the name of any street, or part of a street or may assign a name to any street, or part of a street, to which a name has not been given.

(2) Not less than one month before making an order under this section, the urban authority shall cause notice of the intended order to be posted at each end of the street, or part of the street, or in some conspicuous position in the street or part affected.

(3) Every such notice shall contain a statement that the intended order may be made by the urban authority on or at any time after the day named in the notice, and that an appeal will lie under this Act to a petty sessional court against the intended order at the instance of any person aggrieved.

(4) Any person aggrieved by the intended order of the local authority may, within twenty-one days after the posting of the notice, appeal to a petty sessional court."

13. The Act provides for appeals against decisions of the "urban authority" in Section 8:

"Where any enactment in this Act provides for an appeal to a petty sessional court against a notice, determination, requirement, order or intended order of a local authority under this Act …

(2) The court may make such order in the matter as they consider reasonable, and may award costs to be recoverable as civil debt…"

The Judgment and the Stated Case

14. The judgment of 24 April 2015 began with a consideration of the test that should be applied. The District Judge noted that neither he nor the advocates in the case had been able to find any previous reported authority on either Sections 8 or 18 of the 1925 Act. He declined to apply a test akin to "Wednesbury" unreasonableness, pointing out that neither party suggested that that would be appropriate.
15. The District Judge then referred to the approach adopted, and the objectives which apply, in licensing cases, observing that there are no such statutory objectives in cases such as the present. He said he found the court's experience of dealing with licensing appeals to be analogous and helpful. He said, at paragraph 18, that he had therefore approached the case by observing the following principles:

"a. Both the complainants and the defendants are entitled at this appeal to adduce evidence and I make my decision on the full material before me, which includes evidence coming into existence after the local authority made its decision.

b. The burden of proof is on the complainants. It is the civil standard.

c. I pay careful attention to the reasons given by the local authority for making the decision it has made, bearing in mind that Parliament has placed the responsibility for making such decisions on the local authority. The weight I attach to the local authority's reasons is a matter for me, bearing in mind the nature of the issues and the evidence before me"

d. The decision I have to make is whether the decision made by the local authority is now wrong, based upon all the evidence before me"

16. He continued at paragraph 20:

"Neither the local authority nor this court are therefore required to promote any particular objects. But in order to determine whether the decision of the local authority is wrong or not, that decision to rename and renumber homes must have been done with a view to promoting reasonable and identifiable objectives (rather than merely being arbitrary or on a whim). In seeking to promote such objectives, the local authority should have considered alternative and opposing objectives. I determined that I should approach this appeal by considering seven objects: (a) Logic; (b) Clarity; (c) Utility; (d) Attractiveness; (e) Public Safety;(f) History; (g) Wishes and feelings of residents."

17. The District Judge summarised the evidence and submissions he had heard and then turned to his consideration of each of the factors he regarded as relevant. He ended his observations about the wishes of residents with the following (at paragraph 104):

"In short, the residents, for clear and understandable reasons, do not want this change. In my judgment, as the aggrieved persons referred to in the 1925 statute, their wishes and feelings are an important objective which should be promoted and considered when the Council is considering changing a street name. Do the Council's submissions as to the advantages of this scheme outweigh such a negative response? In my judgment, no."

The Case Stated

18. In the light of that judgment the Council asked the District Judge to state a case for the opinion of the High Court. In doing so, the District Judge repeated much of the analysis contained in his judgment. At paragraph 33 he said:

"In the absence of authority, and given the very wide discretion provided for by Section 8 of the Public Health Act 1925, I drew assistance from an analogous situation where the magistrates' court sits as an appellate authority concerned with the functions of a local council; namely, in licensing matters under the Licensing Act 2003 (particularly Section 181 and Schedule 5). Although the law and practice is far more developed in that area, there are clear similarities between the two regimes. Parliament has entrusted the local authority with making decisions and exercising powers in this area of its residents' lives. Parliament has also provided for appeal to the magistrates' court for those aggrieved at the decisions made by the local authority. That appeal is by way of complaint under both the Licensing Act 2003 and the Public Health Act 1925. Under both statutes, the magistrates' court is given a wide discretion as to its decision ("such order as they may consider reasonable" under the 1925 Act; "dismiss, substitute any other decision or remit" under the 2003 Act).

In such licensing appeals, the hearing in the magistrates' court is a rehearing at which all affected parties are entitled to call evidence and the court is required to make its decision on the full material before it (R (Hope & Glory Public House) v City of Westminster Magistrates' Court [2011] EWCA Civ 31; Noor Mohammed Khan v Coventry Magistrates' Court [2011] EWCA Civ 751; Sevket Gurgur v London Borough of Enfield [2013] EWHC 3482 (Admin)). The magistrates' court is required to pay careful attention to the reasons given by the local authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight which the magistrates' court should ultimately attach to those reasons is a matter for the court's judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal: (Hope & Glory Public House, above; Marathon Restaurant v London Borough of Camden [2011] EWHC 1339). The appellate court will have to be satisfied that the judgment of the local authority is wrong; that is, to reach its conclusion on the basis of the evidence before it and then to conclude that the judgment below is wrong, even if it was not wrong at the time it was made (Hope & Glory Public House, above; Sevket Gurgur, above). "Wrong" does not mean Wednesbury unreasonable (Hope & Glory Public House, above). The magistrates' court may consider evidence occurring before an application to the licensing authority as well as evidence of events occurring since its decision (Noor Mohammed Khan, above). The burden of persuading the magistrates' court that the local authority should not have exercised its discretion in the way that it did is upon the complainant (Marathon Restaurant, above; Sevket Gurgur, above)."

19. He then went on to address the council's decision. He said that he did not "consider that the renaming was entirely logical. There was some logic in the proposals but it was not overwhelming or perfect". He said that he was satisfied "that the renaming would eventually provide some added clarity but that improving current signage would also add clarity". He said that there was "some benefit in the proposals for functionality" but that "the utility of the new names was undermined when one considered the inevitable costs and effort required to effect changes". He did not "consider that the new names were any more attractive than the old names". He did not consider that the new names had any particular advantage over the old names in terms of public safety. He said that "as far as history is concerned, the promotion of such an objective was on the interested party's side". He said there was no history in the new names but there was history in some of the old names.
20. The District Judge then turned to the wishes and feelings of residents which he described as being "hugely important and a factor of which the Council was either unaware or did not take proper notice". He said that in his judgement "when the Council chose to rename the streets in this estate it had an impact on the very identity of the residents involved". He went on "the residents did not want this change".
21. The District Judge concluded the analysis in the stated case with the following observations:

"In my judgment, the perceived advantages of the Council's scheme were limited. Its observations about logic, clarity and utility were imperfect. I certainly did not consider that such limited advantages outweighed the negative response of those directly affected by the changes or historical considerations.

Furthermore, I did not consider that the Council was in possession of all the evidence that I was. I did not consider that the Council was fully aware of the weight of feeling against its decision. Public consultations of which it had been aware were in 2002 or earlier. They were at a time when the estate rebuilding was nowhere near complete. It is not clear that the petition of around 2011 fed into the decision-making in Cabinet.

The need for change was also significantly undermined by the fact that things had been working without particular difficulty for the last five years or so, since the rebuilding was largely complete.

I concluded that the order of the Council was wrong and should be overturned."

22. The questions of law on which the opinion of the High Court was requested were as follows:

"(1) Given that the statutory test on appeal was to make such order as I thought reasonable, was I wrong to approach the legal test in the way set out in paragraphs 33-37?

(2) If I was wrong, what is the correct approach to the test?

(3) When determining an appeal against the decision of a local authority made under Section 18 of the Public Health Act 1925:

(a) Are there any particular factors which the court should take into account?

(b) What weight should be attached to any such factors?

(4) In light of my findings, was I entitled to make the decision I made?"

Competing Submissions

23. I have had the advantage in this case of careful and considered submissions from Mr Steven Gasztowicz QC, on behalf of the appellants, and Ms Caroline Moonan, on behalf of the respondents. Neither appeared below.
24. Mr Gasztowicz, for the Council, contends that the District Judge adopted the wrong legal test. He says that the Judge was wrong to treat the position under the Licensing Act 2003 as analogous with the position under the Public Health Act 1925. He says that the primary judgment on the question of renaming roads was one for the Council and that Parliament cannot have intended local authorities to be subject to challenge unless their decisions "fall outside the range of reasonable responses". He relies on the House of Lords decision in G v G [1985] 1 WLR 647 and says that the District Judge should have approached this decision in the same way that an appellate court considers the exercise of discretion by a puisne judge .
25. Mr Gasztowicz argues in the alternative that if the District Judge was right to allow himself to be guided by the jurisprudence under the Licensing Act, he failed properly to apply the test laid down in R (Hope & Glory Public House Limited) v City of Westminster Magistrates Court [2011] PTST868 and in Marathon Restaurant v Camden BC [2011] EWHC1339. He says that those decisions established that the court should only interfere if it is shown that the Council's decision was wrong "in the sense that it should not have exercised its discretion in the way that it did".
26. Mr Gasztowicz argues that what the District Judge did in this case was simply to pay "lip service" to the Council's views whilst carrying out the balancing exercise afresh using factors that happened to appeal to him. He says that the District Judge was wrong to treat the wishes and feelings of the residents as "hugely important" which could only be overcome if there were clear and compelling reasons to do so.
27. In summary, Mr Gasztowicz argued that the District Judge did not apply the correct test, whether by reference to G v G, Hope & Glory or his own analysis, that, in error, he based his decision on his own view of what he regarded as relevant and that in fact there was no good reason for concluding that the Council was wrong in the decision they reached.
28. Ms Moonan, in response, argues that Section 8 empowered the District Judge to make such orders as he thought reasonable. He had wide discretion as to how he should determine the appeal and was justified in seeking guidance from the analogous situation where magistrates sit as an appellate authority considering licensing decisions. She points out that the Act does not limit the grounds of appeal to cases where it can be shown that the local authority's decision was unreasonable, still less that it was Wednesbury reasonable. She says that G v G is not applicable to the District Judge's analysis because that case was concerned with the exercise of judicial discretion and that was not the nature of the discretion being exercise here.
29. Ms Moonan submits that, in fact, it is the District Judge's exercise of his judicial discretion to which the approach G v G should be applied by this Court. She says that it is only if the District Judge reached a decision on the appeal which no reasonable judge could reach that this court should intervene. She says that the judge was entitled to attach considerable weight to the views of the residents as well as the other six matters he regarded as important. Ms Moonan argues that the District Judge provided "a carefully considered, well thought out judgment" on a difficult issue. She says that the only test he had to apply was what he considered to be reasonable and that there are no grounds for interfering with that decision.

Discussion

30. I find myself in the disagreeable position of being unable to accept the primary submission of either party. In my judgment, the District Judge was not considering the exercise of a judicial discretion and there is no warrant for applying the approach in G v G. But the statute did not give the District Judge an original jurisdiction so as to make him the primary decision maker, but instead it gave the "aggrieved" an unrestricted right of appeal against that decision.
31. As has correctly been observed, there is no reported authority on the proper construction of sections 8 and 18 of the 1925 Act. The starting point has to be, therefore, the words of the statute.
32. Section 18 empowers the Council by order to alter the name of any street. Other than the giving of notice, it imposes no preconditions on the exercise of that power. It gives no direction as to factors to which the council is required to have regard in making such a decision. I see no grounds on which a Court could read into the exercise of the statutory power any requirements to be met, or matters to be considered, before the power is exercised, beyond those required by familiar principles of public law, namely to have regard to all that is relevant and to disregard all that is not.
33. In my judgment that is not surprising. The nature of the power in question is one that demands a subjective judgement by the Council. It can no more be governed by predetermined requirements than can the naming of a child in this country. Essentially, Parliament has given the Council the right to choose a name.
34. There can be no doubt that it is the council who makes the primary decision. The right of appeal given to "those aggrieved" by section 8 does not change the identity of the primary decision maker. The entitlement in the court on hearing the appeal to "make such order… as they consider reasonable" describes the remedies available to the court in disposing of the appeal; it does not make the magistrates court the body charged with the decision whether or not to alter the street name. It follows that before determining what order is required the magistrates' court must first determine whether or not the appeal succeeds; whether or not the Council's decision was "wrong".
35. The statute provides no guidance as to the test which should be applied in determining whether or not the appeal should be allowed or rejected. I reject Ms Moonan's submission that section 8 provides the test and Mr Gasztowicz' submission that I should read into the section a provision that the appeal should only be allowed where the Council's decision is outside the ambit (or as he put it "the generous ambit") of reasonable responses. There is no warrant for importing into s8 such a limitation into what is, on the wording of the statute an unrestricted right of appeal.
36. Although it can assist to consider analogous statutory provisions in order properly to apply a statutory scheme previously unconsidered in the case law, it is necessary to do so with some circumspection. It is important to keep in mind, as Mr Gasztowicz submitted, that the Licensing Act 2003 provides for a very different regime. Here there are no statutory objectives, no statutory guidance and no policy to which the Council were required to have regard or to which the court can have resort.
37. In those circumstances, in my view, it was a mistake for the District Judge here to attempt to introduce objectives of his own devising as a means of testing the adequacy of the council's reasoning. There is simply no basis for the magistrates' court to create such a list of objectives or to treat is as decisive. In my judgment, the District Judge was not entitled to say as he did at paragraph 20 of his judgment

"…in order to determine whether the decision of the local authority is wrong or not, that decision to rename and renumber homes must have been done with a view to promoting reasonable and identifiable objectives (rather than merely being arbitrary or on a whim). In seeking to promote such objectives, the local authority should have considered alternative and opposing objectives…"

38. The Council had explained its justification for the renaming; the District Judge set out that justification at paragraph 51 and following in his judgment. The question for the District Judge was whether, according the Council, as Parliament's delegate, appropriate respect for its reasoning and conclusions that decision could properly be said to be wrong.
39. No analogy can be precise or entirely determinative. It is always necessary to go back to the words of the statute. But it seems to me there is benefit in considering the approach of the Divisional Court in Stepney Borough Council v Joffe [1949] 1 KB 599. There a number of street traders, who had been granted licences by the appellant borough council under s. 21 of the London County Council (General Powers) Act, 1947, were convicted of selling goods at prices exceeding the maximum fixed by the relevant order made under the Defence (General) Regulations, 1939 . The council revoked their licences under sub-s. 3 (a) of s. 21 of the Act of 1947, being of the opinion that by reason of their convictions, they were unsuitable to hold their licences. The traders appealed under s. 25, sub-s. 1, of the Act to a magistrate. The council contended, on the hearing of those appeals, that the magistrate was not entitled to substitute his opinion as to the suitability of the traders to hold licences for that of the council; that he was not empowered to review the merits of the matter for the purpose of deciding whether each of the traders was suitable or not; and that his jurisdiction was limited to considering whether or not there was any material on which the council could reasonably have arrived at their decisions to revoke the licences.
40. Section 25, sub-s. 1 provided that any person aggrieved by the revocation by a borough council of a licence could appeal to a petty sessional court and that "on any such appeal the court may confirm, reverse or vary the decision of the borough council ..."
41. Lord Goddard, the LCJ, held:

"It seems to me that s. 25, sub-s. 1, gives an unrestricted right of appeal, and if there is an unrestricted right of appeal, it is for the court of appeal to substitute its opinion for the opinion of the borough council. That does not mean to say that the court of appeal, in this case the metropolitan magistrate, ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter, and it ought not lightly, of course, to reverse their opinion. It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right. The words of s. 25, sub-s. 1, are very wide. The magistrate is given power to "confirm, reverse or vary the decision of the borough council," and, that being so, it seems to me that once the licensee appeals to him, he is bound to form an opinion upon the matter and "confirm, reverse or vary the decision of the borough council" according to the judgment which he forms."

42. That case was followed in R (Hope & Glory Public House Ltd) v City of Westminster Magistrates Court [2011] PTSR 868, the case relied on by the District Judge and the foundation of Mr Gasztowicz' alternative case. The applicable test was described in page 881 of Hope & Glory, as follows:

"where the licensing authority has exercised what amounts to a statutory discretion to attach conditions to the licence, it makes good sense that the licensee should have to persuade the Magistrates Court that the sub-committee should not have exercised its discretion in the way that it did rather than that the Magistrates Court should be required to exercise a discretion afresh on the hearing of the appeal."

43. In my judgment, a similar approach to that set out in Stepney and Hope & Glory is appropriate here. Section 8 provides an unrestricted right of appeal; but a District Judge is obliged to pay great attention to the opinion of the Council as the duly constituted and elected local authority and should not lightly reverse their conclusion; his function is to exercise the s8 powers only if he was satisfied that the judgment of the Council could be shown to be wrong, not merely because he was not satisfied that the judgment was right; if, but only if, he was first satisfied the Council was wrong was it for the District Judge to substitute his opinion for that of the Council.
44. That approach mirrors much of the one that the District Judge said that he was going to apply here (see the quotation from paragraph 18 of the judgment, which was repeated in paragraph 34 of the stated case, and is set out at paragraph 15 above). It follows that he was right not to test the council's decision by asking whether it was Wednesbury unreasonable and that I reject Mr Gasztowicz' first argument that the District Judge adopted the wrong approach to the issue before him.
45. It is next necessary to consider whether the District Judge fell into error in the way he applied that approach to the facts before him. I accept Ms Moonan's submission that, at this point in the analysis, I should apply the approach set out in G v G and only allow the Councils appeal if I conclude that the conclusion of the District Judge on the facts was not one properly open to him.
46. It follows from what I have said above that the District Judge was right to say that the council's opinion on the issue was a matter to which careful attention was required; and he was right to say that the burden of proof was on the residents. But in my view he fell into error when he applied those principles to the facts before him. In my judgment, when he came to consider the facts he appears to have paid little attention to the Council's opinion and he appears to have regarded the burden of proof as falling on the Council.
47. Furthermore, the District Judge failed clearly to identify where he said the Council had gone wrong. He proceeded on the basis that he was not satisfied that the Council's judgment was right, whereas it was only if the Council's decision was shown to be wrong, that he could go on to substitute his opinion for theirs.
48. Reference to a few passages in the judgment and stated case suffices to make good those points. The District Judge's analysis from paragraph 65 of the judgment onwards proceeded by considering objectives he thought appropriate. Nowhere does he acknowledge the weight to be accorded to the Council's opinion on that issue or to explain why the objectives identified by the Council were inadequate or insufficient or wrong. When he worked through the individual objectives he had identified, he noted points for and against the Council scheme but he does not suggest (nor could he, in my view) that any of them render the Council's decision bad.
49. Paragraph 104 in the judgment, which is set out at paragraph 17 above, demonstrates plainly, in my view, that the District Judge regarded the burden of proof as falling on the Council. In fact that is the impression left by the latter part of his judgment generally. That was both wrong as a matter of law and was inconsistent with the principles the District Judge purported to be applying.
50. Paragraphs 64 onwards in the stated case demonstrate that the District Judge regarded the interests of residents as a consideration of the highest importance, and I accept that those interests are matters which in most cases, including this one, will need to be taken into account. But unless it had been shown that the Council's approach to that issue was wrong or flawed, he was not entitled to go on to substitute his view on the topic for that of the Council.
51. In the conclusions to the stated case, at Paragraph 73, he comments on what he sees as the limited advantages of the council scheme but does not explain why those rendered the decision on renaming bad.
52. In those circumstances, it is my judgment that the Council's appeal must succeed.

Answers and Remedy

53. I answer the questions posed of me as follows:

i) The District Judge's approach at paragraph 35 was correct but he was wrong to test the matter by the application of objectives he identified, as he did at paragraph 37 of the stated case;

ii) The correct approach is that set out at paragraph 38 of this judgment;

iii) In determining an appeal under Section 18, there are no objectives or features that can be identified in advance which the Court should take into account; the issue is whether the appellants have shown that the local authority's decision on the facts before the Court was "wrong";

iv) In those circumstances, the District Judge was not entitled to make the decision he did.

54. It was common ground between the parties that if I allowed the Council's appeal I could either do no more and leave the Council's decision standing, or I could remit the matter to the District Judge to reconsider his decision in the light of my judgment. Given the nature of the issue and the breadth of the District Judge's powers under Section 8, it is my provisional view that the right course is to remit the matter to him to reconsider in the light of this judgment. However, I am willing to hear submissions from counsel on the appropriate disposal.