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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Street v Cardiff County Council [2009] EWHC 3620 (Admin) (20 November 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/3620.html Cite as: [2009] EWHC 3620 (Admin)

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

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff
		20th November 2009

HHJ Jarman QC:

1. This is an application by Mr Kenneth Street for permission to bring judicial review proceedings against Cardiff County Council in respect of the grant of planning permission on 12 March 2009 to the interested party, which is Lindstrand Aerial Platforms Limited (?) The question of permission was dealt with on paper by Hickinbottom J on 13 August 2009. He ordered the application for permission to proceed and also that a protective costs order application be adjourned to an oral hearing and transferred the matter to the Administrative Court in Wales. In his observations he appreciated the force of the submissions made on behalf of the defendant county council but was not convinced on the papers that all of the grounds were necessarily unarguable. He considered that the claimant should be given the opportunity to make good the application for permission and accordingly adjourned the application for an oral hearing, at which he observed the judge would be able to consider whether permission should be given at all and if so with the benefit of oral argument he would be in a better position to crystallise the arguable issues and give permission on specific grounds.
2. The claimant, Mr Street, lives in Cardiff. The planning permission to which he objects is the permission to change of use to accommodate the installation and operations of what is called the high flyer balloon with a viewing platform and associated development in an area known as Britannia Park in Cardiff Bay. Mr Street's flat lies about 350 metres from the proposed development and he says that he, like many other residents in the Bay, enjoy the green space of Britannia Park. There is very little of it in the locality. He says that free access to that space is particularly vital for parents of small children who live in the surrounding developments of houses and flats in the Cardiff Bay area as there are few spaces on which the children can play.
3. Mr Street's concern is that the proposed development will reduce the open green space of the Park and change the tone from an open space to one aimed at paying customers. Mr Street made clear in his witness statement on 12 November 2009 that he had opposed this development throughout the planning process. He wrote three letters of objection, one dated 27 February, one dated 2 March and another dated 11 March 2009. It appears that there is some doubt whether that last letter was put before the planning committee when it considered it's decision. However, Mr Street confirms that he attended a site visit with members of the planning committee and also made an oral representation to the committee at the meeting when permission was granted.
4. Before I turn to the detailed grounds upon which permission is sought, I should refer to the planning permission in detail and the report which informed it. It is in relation to a well known part of the Cardiff Bay development, adjacent a former dock known as the Roath Basin. There are a pair of substantial lock gates leading from that basin into the inner harbour now within the Cardiff Barrage scheme. Adjacent to those locks is an area with which we are concerned. It is an area where a church, known as the Norwegian church, has stood for many years for the use of sailors coming into the docks. The church is towards the southerly part of the area concerned overlooking the inner harbour area. It is now surrounded by a small area of grass and some trees. There are paving areas around it and a car park to the rear. Beyond that is the area now known as Britannia Park, which comprises a much larger grassed area, some shrubbery and again pathways.
5. The plans which were put in to the defendant as local planning authority as part of the application, show what is intended. There are plans showing the balloon in the overnight or locked-down position when not in use and in elevation when in use. There is also a bird's eye plan showing the balloon,, non-slip timber decking below it and an assembly area also comprising non-slip timber decking which leads to a path going in and another coming out. There is a proposal for a winch house across the pathway and also a ticket house. Mooring stations and ropes are set around the balloon.
6. The proposal is that the balloon would have a total height of about 26 metres or 35 metres on take-off with 16 inner mooring points and 16 outer mooring points. When in flight the balloon would rise to a height of about 155 metres with a viewing gondola having a height of approximately 120 metres to the base thereof. The gondola is proposed to take some 30 passengers and crew.
7. The area of the non-slip timber decking is approximately 114 square metres and the railing enclosing the decking area and the inner mooring points would enclose, according to the defendant council, an area of about 420 square metres. That was on the basis that the balloon was calculated to be in the region of 20 metres in diameter. The winch house, which is to be located close to an existing cottage includes a 0.6 high dwarf stone wall topped by aluminium with clear and obscure glass allowing views of the working cable winch. The house measures approximately 6.25 metres by 6.25 metres by 2.05 metres which is the maximum height for the winch itself, set about 0.3 metres below the existing ground level. The winch cable travels underground from the winch to the centre of the balloon gondola.
8. A full report was made by an officer of the planning department for the committee meeting, which considered this application on 11 Marchh 2009. The application had been made in the previous December. After setting out the description in the manner to which I have referred, the report goes on to describe the policy framework and, in particular, the relevant local town policies, which included policy 7, dealing with protection of open space. That policy states as follows:

"Development proposals involving loss of recreational or amenity open space, whether in public or private ownership, will only be permitted where:

i. they would not cause or exacerbate a local or city-wide deficiency of recreational open space and the open space has no amenity or nature conservation importance; or

ii) The developers provide satisfactory compensatory open space."

In the report it was acknowledged that the proposed development would result in the loss of open space.

9. In dealing with the analysis, the author of the report referred also to the original outline planning permissions for the redevelopment of this part of the inner harbour of Cardiff Bay, numbered 90/479R and 94/305R respectively. From those it is clear that the area in question was designated as parkland. The planning brief for that permission described the use of the site as "a focus for small-scale retail leisure activities such as pubs and restaurants." The brief continued that appropriate building for the site " would be low profile, compatible with this parkland setting and should not occupy more than 25 per cent of the park area. The park would become a destination for journeys around the basin"
10. Condition 5.6 of the permission 90/479R provided that the public amenity areas "will on completion of each part be made available for use by the public for recreation." The reason given for that condition was to ensure openness and to maintain the area for leisure and recreation. Condition 5.7 states as follows:

"Of the area laid out for open space and/or recreation grounds and forming Roath Basin Park in accordance with condition 5.4, not more than 25 per cent shall be built upon and no such building to be constructed thereon shall have a gross floospace exceeding 1000 sq feet. Reason: to ensure the openness and to maintain the area for leisure and recreation. "

11. After those conditions are referred to in the report, some measurements are given of the proposed site. The area of grassland was said to be 1800 square metres and the area to be enclosed measured approximately 421 square metres. The proposed winch house was said to have a floor area of 36 square metres and accordingly it was said the proposed development was less than 25 per cent, both of the grassed area in isolation and the wider total open space area.
12. It was considered that the current proposals differed significantly from a proposed adventure golf facility previously refused because the former not preclude public use of the majority of the grassed area and subsequently did not result in a deficiency of recreational open space in the vicinity of more than 25 per cent. A number of representations were referred to including a petition.. It repeated that the council was satisfied that the amount of land to be enclosed could not represent a significant loss of open space provision. In addition it was said the use of the outer mooring points which are outside the proposed enclosure would only be necessary during hours when there was unlikely to be a significant use of the open space. The anchor system sits flush with the ground. It was noted that one of the main reasons for the refusal of the consent of the golf facility was the loss of open space.
13. The report concluded that, given the limited ground area affected, and bearing in mind that the applicant had agreed to limit their consent to a five-year period in order for the council to assess the effect of the development in terms of the amenity area, it was considered that no precedent was being set. The residents and occupiers of the flats nearby were referred to. It was accepted that there would be an effect on the visual amenity of those occupiers. It was pointed out that under current legislation there is no right to a view. The visual amenity of the whole area was affected but it was considered that the application was on the periphery of the redeveloped Bay area with operational docklands just metres away on the opposite side of the basin, it was considered that that was acceptable. There was also reference to a letter accompanying the applications which stated that the outer tethers were not an issue as regards to clearance. Furthermore it was noted that the outer tethers were only in place when the high flyer was in the fully moored position..
14. There was a document setting out late representations including the representations from the claimant, dated 22 February and 2 March. There, the loss of the grassed area was referred to. The claimant questioned the calculation of the loss of the area but put forward the argument that the loss would be more than 25 per cent. He asked that the applicant should conduct a detailed GPS survey by a chartered land surveyor. He referred under the heading of health and safety to the issue of the balloon being locked down for operational reasons during high wind speed, of over 25 knots, which is the speed over which the balloon will not operate. He added that using data supplied by the Cardiff Harbour Authority for 2008 that on 167 of the days of that year the wind speed exceeded that speed. Indeed during June and August it was said that the wind speed exceeded that limit on 48 out of 92 days.
15. In response to those representations the author of the report, one of the officers, set out all of the remarks for consideration of the committee. There was a reference to a nearby building. The balloon at high moored height was said to be 35 metres, which was two metres higher than that building. It was further noted that as a result of the request of the planning committee during its site visit on 2 March 2009, the council had received information from Associated British Ports which is the owner of the land in question. That information indicated that the total area of the central landscape space namely the grassed and shrub planted area was 1917 square metres with 1,082 square metres being open grassed area. In that case 25 per cent of the grassed area alone is 450.5 square metres with the proposed enclosed area being approximately 421 square metres. It was emphasised that those figures relate purely to the central landscape area and that the open space also includes the shrub surrounding that central element. The figures in relation to wind speed and operational requirements were noted, but it was said that weather patterns from one period to another cannot reasonably be employed in the assessment of the application. The application had been assessed by the strategic planning manager who had indicated that the proposal was acceptable in policy terms subject to consultation with the council's cultural leisure and parks officer regarding loss of space. The parks officer had no objection because the council did not maintain the land, it being privately owned.
16. The remarks continued, therefore, that policy 7 had not been ignored and it was considered that the proposal would increase visitors from further affield.
17. Following consideration of that report, permission was granted subject to a number of conditions. The first was that the use would be discontinued and the land restored to its former condition on or before 31 March 2014. The reason given was to enable the local planning authority to assess the effects of the development at the end of the period with regard to any fresh application that may be made. The second condition provided that the consent related to the amended application and revised plans received in January and March 2009 and that the plans form part of the application.
18. There is no dispute as to the legal framework within which this application was considered. The council is required to determine the application in accordance with the development plan unless material considerations indicate otherwise: see section 70 of the Town and Country Planning Act 1980 and section 38(6) of the Planning and Compulsory Purchase Act 2004. In respect of the development plan the council must correctly identify relevant policies and must interpret them correctly. If there is a dispute about the meaning of the words included in a policy, then it is for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then there will be an error of law. The test to be applied therefore to the council's interpretations of the policy in question is one of Wednesbury unreasonableness.
19. As for other material considerations, it is accepted that the council is required to correctly identify these, correctly to interpret them and to weigh them up in the balance. It is not in dispute that the conditions of the 1994 planning permission and in particular 5.7 are material considerations. This is a matter of hard-edged law, submits the claimant, and the test as to whether or not the matter is capable of being a material consideration is an objective one. It is accepted too that when considering the likely question of the officer's report the fundamental question is whether members of the planning committee were materially misled when they took the decision to give permission. The report must be read as a whole in light of the fact that the officer is addressing decision makers applying their own policies. Even though the report is short and less than perfect, it is lawful unless a vital ingredient is missing.
20. Where there is no additional reason advanced by the local planning authority it is accepted that the reasons for the consent are taken to be those set out in the report. In this regard I was referred to the authority of Oxton Farms, Samuel Smith Old Brewery (Tadcaster) -v- Selby DC, Persimmon Homes (Yorkshire) Ltd [1997] EWCA Civ 1440, a decision of the Court of Appeal on 18 April 1997. In that case Pill LJ said this in relation to such reports:

"Clear-mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submissions to the council liable to be quashed. The overall fairness of the report, in the context of the statutory test, must be considered.

It also has to be borne in mind that there is usually further opportunity for advice and debate at the relevant council meeting and the members themselves can be expected to acquire a working knowledge of the statutory test."

In my judgment those latter remarks are particularly apposite in this case.

21. Judge LJ agreed and said this:

"The report by a planning officer to his committee is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the community who are responsible for the decision and were entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions given by a judge when summing up a case to the jury.

From time to time there will no doubt be cases where judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the planning committee before the relevant decision is taken."

Against that background I turn to consider the challenges made by the claimant in this case.

22. The first is that the committee misunderstood policy 5.7 of the 1994 planning permission but did not address its mind to what was the Roath Basin Park in 1990. Since then there have been two substantial buildings erected in that area; firstly in 1991 the visitor centre which had a large footprint and secondly and shortly thereafter a public house and toilet facilities. It was further submitted that the local planning authority did not address the issue of what comprised the Roath Basin Park and therefore was substantially misled in relation to the requirement of 25%. Indeed at one stage it was argued that because of a change of name the committee might have mistaken that park for the Waterfront Park which is an area surrounding the Norwegian church. In my judgment that is a fanciful suggestion. Having regard to the area, the prominence of it, the fact it is adjacent to the Roath Park Basin and lock gate in from the inner harbour, and also having regard to the measurements which the committee requested from the owner of the central grassed area, it is quite clear from the way that that area is referred to in the report that the committee had well in mind which area was involved.
23. The committee was entitled in my judgment to take the measurements provided by the owners and to come to the conclusion that 25 per cent of the grassed area alone, which is the remainder of the land after the visitor centre and the public house had been taken into account, had not been exceeded. This it seems to me is likely to have been well within the knowledge and contemplation and of the members of the committee especially having had the benefit of a site visit. In my judgment this ground of challenge is not arguable.
24. The next challenge is on the basis that the committee failed correctly to identify the land to be built upon. It took the wrong measurements of the balloon, which in fact it is said was 23.9 metres in diameter rather than 22 metres once planned to scale correctly, but it did not take into account the winch house and other such matters. Again in my judgment there is no substance in these complaints having regard to the report as a whole, the remarks on the representations, those representations themselves, the fact that the claimant amongst others addressed the committee and accompanied members on the site visit.
25. Next it is said that the committee failed to have regard to the fact that the mooring lines would be in what is called the locked down position in adverse weather as well as during the hours of darkness or between 2300 and 0800 hrs in the morning. It is said that there was a material misdirection in failing to look at the weather patterns. Again, it seems to me this complaint ignores the experience of the officers and the members of the planning committee, their local knowledge, and their knowledge of weather in the Bay. It is fanciful to suggest, in my judgment, that they did not have regard to the fact that in adverse weather conditions when wind speeds were over 25 knots that the mooring lines would be in place.
26. Finally in relation to policy 7 it is said that the interpretation of that policy by the officers and consequently by the committee is unreasonable in the Wednesbury sense. Again I am not persuaded that the claimant has arguable grounds for so alleging. The report set out the policy in full. It had regard to the particular type of the development in question which is of a recreational nature. It also had regard to the limit of the permission to run for five years. It was open to the committee in my judgment to recommend approval of this application and to grant it, having reminded itself, as it did, of that policy.
27. Finally it is said that the permission does not as it should have done (and there is no dispute about this) set out the policy framework in which it is granted. It is accepted on behalf of the claimant that if this were the only ground upon which permission was sought, then it would be unlikely to be given. It is accepted that that alone does not merit the quashing of the decision. What is said, however, is that a declaration should be granted to that effect and reliance is placed upon the authority Health and Safety Executive v Wolverhampton CC and Victoria Falls Ltd [2009] EWHC 2688 (Admin) where Collins J granted similar declarations in respect of the issue of environmental impact assessments. He did so on the basis that, although they may be of limited practical benefit to the Health and Safety Executive, they do make it clear for the future of the need to comply with the circular. That in my judgment is somewhat far removed from the particular facts of this case where the policy framework was set out in the report and well understood in my judgment by those objecting to this proposal and accordingly it is not an appropriate case for a declaration.
28. Accordingly I refuse permission to the claimant to continue with these judicial review proceedings.
29. MS TOWNSEND: My Lord, I am grateful. Your Lordship knows that in accordance with well known case of Mount Cook there was an application for costs set out in the acknowledgement of service and these were assessed at estimated to be I should say, £1,369 and so I do make an application for costs in that sum. I will sit down now. All I say about quantum is that underestimates the actual costs of preparing the acknowledgement of service as is very clear from the judgment of costs that was served on the claimant. I don't seek to raise the application but if there was any dispute as to the amount that is under claim.
30. MR BURTON : My Lord, there are two matters and that is, before we get to costs my Lord, I have an application for permission to appeal
31. HHJ JARMAN : Shall we deal with costs first?
32. MR BURTON : Yes, let's deal with costs first. My Lord, firstly, before we come to the amount, this was a claim brought only in the public interest relating to a matter that was of general public importance by yes a private individual but that is how claims are brought and I hope that there is and will be no dispute of that point. There was not a claim brought for any reason other than those Mr Street gave, as your Lordship has set out, and to the committee to preserve the open space for members of the public generally and it follows in my submission that there is a preliminary issue which is the extent to which it would be just and my Lord is well aware of the authorities on this point to order the claimant to be paid any costs at all in this regard and then, if so, more than a proportion before one comes to the actual sums concerned. This is a case in my submission where the claimant should be protected from such an order and my Lord has from the claimant is mixed and they are modest and he has been entirely frank with the court as to what they are and he has been entirely frank with the court as to what he can and cannot afford to the extent that he has suggested a (inaudible) on the point that there should be no order for costs to be paid and the maximum amount if £500. Now, I have asked my Lord that that submission be dealt with before we move on
33. HHJ JARMAN : Thank you. Anything to say on that point?
34. MS TOWNSEND: My Lord, just very shortly my Lord. Mr Street's personal circumstances are recognised. He has a total monthly disposable income irrespective of what his partner brings in of £1,200 and he is not as poorly off as perhaps is characterised by the submissions made by my learned friend. As to the extent to which it is thought the public interest are alleged, no mala fides, no bad faith, are alleged on Mr Street's part but it is to protect his own interests and the community around him that he ought to pay, and he ought the consequences of that (inaudible) that not considered arguable. Finally on this point as I … the point I made in my submissions resisting an application for a protected costs order, the arrangement made with his own solicitors is that if he is successful he pays their fees. If he is unsuccessful he should pay the defendant's costs.
35. HHJ JARMAN : Mr Burton?
36. MR BURTON : Yes, thank you, my Lord. Well as my Lordship knows the claimant's wife is a pensioner and (inaudible) the schedule pages 121 and 123 where the figures are set out and I must say it is rather difficult to see how my learned friend gets to what she appears to present as disposable income which (inaudible) would understand, but I am not sure the way that my learned friend is relying on that figure, I don't understand there to be money floating around as it were unallocated. So it may be we are talking at cross purposes but we can see the expenditure and how it all adds up. I am sorry …. And the net result is a slight loss on the month. My Lordship has the two pages and so take 1527 where it is described as disposable income but obviously that is before (inaudible) and so on. So there is nothing in that submission there, and as to the point that my client brought the claim in his own interests and that of the community around him, that is how it was put, well he certainly did bring in the interests of the community around him and the wider public and it is nothing to the point to say that because someone's interest are the same as those of the wider community they are therefore bringing it in their own interests and that somehow disqualifies them from the protection of the court in relation to costs. (inaudible) he claim brought in good faith in the public interest and your Lordship has my (inaudible) it is certainly not £1200 free money each month.
37. HHJ JARMAN : Having come to a decision, I have an application for costs to deal with, the costs being estimated at £1469, being the costs of the acknowledgement of service. On behalf of the defendant it is said and not contradicted that that is not all the costs by any means which the defendant has incurred in resisting this application for permission. It is clear in my judgment that the claimant is a person of modest means. On his own statement it seems to me that a significant part of the reasons he brought this application was because of the nearness of his particular flat to the proposal land and, as he sets out in his statement, to the use of the amenity land by his grandchildren. At least part of it, it seems to me, therefore must have been in his own interests. I accept that he may have had the broader interest of other residents and users of the amenity as well.
38. On the whole, because these grounds as I find them to be are not sufficiently arguable to warrant permission and because he has brought them despite making full representations to the local planning authority, attending the site view and addressing the committee, it is appropriate that he should pay the sum of limited costs of £1369 and that is the order I make.
39. MR BURTON : My Lord, I do apologise. I do actually need to address you on quantum which I have not done so yet
40. HHJ JARMAN : I am sorry I thought you had.
41. MR BURTON : No I was hoping to take it in stages.
42. HHJ JARMAN : You mentioned a figure of £500.
43. MR BURTON : Yes. I did and in fact it is pure coincidence that actually it is that figure that it is particular coincidence that I say that is the right figure on the Mount Cook test because my learned friend will correct me if I am wrong but as I understand it, it was my learned friend who prepared the acknowledgement of service and we see her name on the summary grounds. And I am not corrected, maybe I will be corrected I don't know, but the court must distinguish between preparation of the acknowledgement of service, which is an amount that we accept is recoverable and other preparation costs. If I am right and my learned friend has prepared the acknowledgement of service and as I say her name is on it.
44. HHJ JARMAN : Has there been discussion between counsel about these matters?
45. MR BURTON. No, my Lord.
46. MS TOWNSEND : It's the first time I have heard there is a dispute.
47. MR BURTON : I apologise, my Lord
48. HHJ JARMAN : We will rise for a short time and give you an opportunity to discuss that.
49. MS TOWNSEND : Thank you, my Lord

(Court rises)

50. MR BURTON : I am grateful for that opportunity. My Lord, the dispute arises as to the correct interpretation to be placed upon the case of Mount Cook and also David v (inaudible) DC and what the claimant says is that the costs at this stage must be limited to those putting in an acknowledgement of service and that there is an important distinction to be drawn between that and other preparatory costs and the law is that whilst the defendant can expect to get the costs of putting in an acknowledgement of service the defendant will have to make a special case to get the other preparatory costs at this stage. Now when we come to the statement of costs it is apparent what the defendant has done is claim that amount of my learned friend's fee which I understand is higher than this for the work which he did in the round but … but claim that part of the fee that related to the preparation of the acknowledgement of service which is £500 which I say is proper and now my difficulty my Lord is with the sums … did my Lord have the schedule? The statement of costs I should say?
51. HHJ JARMAN : I don't think I did
52. MS TOWNSEND : It's not in my core bundle
53. HHJ JARMAN : No
54. MS TOWNSEND : I am happy to hand up mine, you know what is going on now.
55. MR BURTON : I am grateful, I am grateful. My Lord …
56. MS TOWNSEND : My instructing solicitors' copy …
57. MR BURTON : What we say is that the amounts on page 1, £869, they cannot properly be said to relate to the putting in of an acknowledgement of service because and really this is a submission that is both made in principle and simply by looking at the reality on the ground, we know that counsel has settled the acknowledgement of service and we know therefore that the solicitor has not settled the acknowledgement of service so we can be looking at no more than the cost of putting the relevant paperwork putting it together …
58. HHJ JARMAN : Yes
59. MR BURTON : And instructing …
60. HHJ JARMAN: Instructing counsel.
61. MR BURTON : Instructing counsel and then filing it but either those sums, which come up to approaching nine hours cannot relate to that, or that is an unreasonable time to spend on those matters. As I say, when it's counsel who has drafted the acknowledgement of service.
62. HHJ JARMAN : Well the statement says that costs relate particularly in relation to the acknowledgement of service. So you say that this is somehow misleading?
63. MR BURTON : Well my Lord I don't say that and I am obviously … I must accept what the statement says on the face of it but applying the legal principle the defendant is only entitled to the … I fail to recall the correct definition of costs on standard ….
64. HHJ JARMAN : Well I am not really suggesting anything to counsel's brief for drafting the acknowledgment of service.
65. MR BURTON : No.
66. HHJ JARMAN : (inaudible)
67. MR BURTON : My Lord there must be something additional but it is certainly not £869 in addition because that cannot be reasonable and reasonably and necessarily incurred
68. HHJ JARMAN : Ms Townsend.
69. MS TOWNSEND : Just a couple of points my Lord. These … this schedule was served in July and the first time any query of its contents was raised was orally this afternoon. The second point is my instructing solicitor concluded the schedule according to a computerised system of timing that they have at the office and that doesn't have the outputs from that but it is fee apportioned, my brief fee from the global sum of over £1,000 to the £500 which appears for the drafting of the ground and I emphasise my final point that counsel drafted the grounds only. I remember because it was done under some pressure of time. I sent the grounds, all of the other documentation and the assimilation of the paperwork for the acknowledgement of service was done by the counsel. Those are my submissions thank you very much.
70. HHJ JARMAN : Yes very well, well I am satisfied that the statement of costs properly set out the costs of the acknowledgement of service. Miss Townsend says she drafted the grounds only, and the assimilation of the paperwork, instructions and the acknowledgement of service as such were undertaken I am satisfied by their instructing solicitors who claims a rate of £98 per hour. The grounds of challenge were numerous and wide-ranging and it seems to me that is a reasonable sum for the costs of the acknowledgement of service.
71. MR BURTON : Yes, now, my Lord the question of my application for permission to appeal and I must admit my Lord to be not entirely clear as to whether or not I make that initially to my Lord and then or not actually. I am afraid I simply do not know because I have not done this before
72. HHJ JARMAN : Well would you like time to look it up?
73. MR BURTON : Well I am just not sure my Lord, does my Lord know?
74. HHJ JARMAN : Well I will give you some time to look at it.

(Court Rise)

75. MR BURTON : Thank you for the opportunity. The White Book has told me, tells us that any appeal from your Lordship's decision may be made to the Court of Appeal and not apparently to your Lordship in any way so I am sorry to have troubled your Lordship.
76. HHJ JARMAN : Thank you both very much