Payne v Caerphilly County Borough Council

Thursday, 16 January 2003

1. LORD JUSTICE SCHIEMANN: I will ask Lord Justice Dyson to give the first judgment.

2. LORD JUSTICE DYSON: On 15 December 2000 Mr Payne made an application ("the application") under paragraph 9 of Schedule 13 to the Environment Act 1995 ("the Act") to the Caerphilly County Borough Council ("the Council") for approval of conditions in relation to two planning permissions. The first of these permissions had been granted to the National Coal Board on 30 March 1955 for proposed development described as "disposal of colliery rubbish". This permission was subject to a number of conditions which are not material for present purposes. The second permission was granted to a Mr Ludlow on 10 August 1961 for proposed development described as "removal of the tip". It, too, was subject to a number of conditions, the first of which was that "this consent shall extend for a period expiring on 31 December 1971". So far as material, the application was in these terms:

"1. The mineral site to which this application

relates is the land at Nelson Road,

Senghenydd, Caerphilly formerly the tipping

ground of the Universal and Windsor

Collieries, more particularly delineated on

the map or plan enclosed and attached to this

application and edged in red on that map or

plan.

2. The APPLICANT is the owner of the land described above and delineated on the map or plan attached to this application.

3. The "RELEVANT PLANNING PERMISSIONS" relating to the site are as follows -

(a) The permission granted by the Caerphilly Urban District Council to the National Coal Board on the 30th day of MARCH 1955 [Code Number 1722]; and

(b) The permission granted by the Caerphilly Urban District Council to Mr Cyril James Ludlow on the 10th day of August 1961 [Code Number 4240]

4. THE CONDITIONS TO WHICH THE APPLICANT PROPOSES THE PERMISSIONS REFERRED TO SHOULD BE SUBJECT.

PERMISSION (a)

Conditions .

1. Any buildings or works authorised by this permission shall be removed, and any use of the land authorised by this permission shall be discontinued, not later than the 22 FEBRUARY 2024.

2. The materials to be disposed of on the site shall include colliery rubbish, brick, stone, concrete and builders rubble.

3. Any of the materials on the site may be processed by machinery or otherwise within the confines of the site and exported from the site after processing.

4. Upon the discontinuance of the works authorised by this permission, the land shall be made suitable for agricultural use, in accordance with a scheme to be submitted to the Mineral Planning Authority on or before the 1st of JANUARY 2002. If the Mineral Planning Authority fail to approve in writing the scheme referred to in this condition within six months of receipt of that scheme then the matter may be referred to a person appointed by the Secretary of State for determination, and the person appointed by the Secretary of State may amend or change the scheme as that person thinks fit.

PERMISSION (b)

Conditions

1. Any buildings or works authorised by this permission shall be removed, and any use of land authorised by this permission shall be discontinued, not later than the 22 FEBRUARY 2042.

2. The materials or minerals to be removed from the site may be processed by machinery or otherwise within the confines of the site.

3. Upon the discontinuance of the works authorised by this permission, the land shall be made suitable for agricultural use, in accordance with a scheme to be submitted to the Mineral Planning Authority on or before the 1st of JANUARY 2002. If the Mineral Planning Authority fail to approve in writing the scheme referred to this condition within six months of receipt of that scheme then the matter may be referred to a person appointed by the Secretary of State for determination, and the person appointed by the Secretary of State may amend or change the scheme as that person thinks fit."

A plan was attached to the application which identified the land that was subject to the application. I shall refer to this land as "the application site".

3. The Council's response was contained in a letter dated 19 December 2000, which included the following.

"Section 96 and Schedule 13 para 1 and 2 of the [Environment Act 1995] define a mineral site as being composed of relevant planning permissions ie extant permissions for mineral development. Permissions which were subject to a time limit on the duration of development were specifically excluded from the definition of a relevant permission if the time limit on duration had expired. Therefore the "Ludlow" permission was not included on the First List and has now ceased to have effect (Schedule 13 para 6). Since no appeal was made to include the site on the list within the specified time the County Borough Council now have no authority to include the site even if it was disposed to do so. (R v North Linconshire Council, ex p Horticultural and Garden Products Sales (Humberside) Ltd 1997).

The permission for colliery waste tipping on the site was not subject to any such time limit on duration and was, therefore, included on the First List as a dormant site. An application may be made to determine new conditions for that permission (Schedule 13, para 9) prior to any commencement of works on site. However the permission and new conditions would not authorise removal of spoil only renewed tipping of colliery waste.

I am, therefore, returning your application for determination of conditions."

4. The precise relationship between the application site and the land that was subject of the two planning permissions is not entirely certain. It seems clear, however, that the sites that were the subject of the two permissions were close to each other, and were both situated within the envelope of the application site.

The statutory framework

5. With minor amendments, I gratefully adopt the following summary of the relevant provisions of the Act which was given by the judge at paragraphs 5 to 8 of his judgment.

"5. Section 96 of, and schedule 13, to the 1995 Act make provision for the review of old mineral permissions. Section 96(6) defines "minerals development" as:

'development consisting of the winning and working of minerals, or involving the depositing of mineral waste.'

6. For the purposes of schedule 13 a 'mineral site' includes land to which a 'relevant planning permission relates' (see paragraphs 1(1) and 1(2)(b). A relevant planning permission:

'means any planning permission, other than an old mining permission or a planning permission granted by a development order, granted after 30th June 1948 for minerals development...'

8. The schedule divides mineral sites into active Phase I sites, active Phase II sites and dormant sites. Paragraph 9 of schedule 13 (so far as material) provides as follows:

'9(1) Any person who is the owner of any land, or who is entitled to an interest in a mineral, may, if that land or mineral is or forms part of a dormant site or an active Phase I or II site, apply to the mineral planning authority to determine the conditions to which the relevant planning permissions relating to that site are to be subject.

(2) An application under this paragraph shall be in writing and shall -

(a) identify the mineral site to which the application relates;

(b) specify the land or minerals comprised in the site of which the applicant is the owner or, as the case may be, in which the applicant is entitled to an interest;

(c) identify any relevant planning permissions relating to the items;

(e) set out the conditions to which the applicant proposes the permissions referred to in paragraph (c) above should be subject.

(6) Where the mineral planning authority receive an application under this paragraph in relation to a dormant site or an active Phase I or II site they shall determine the conditions to which each relevant planning permission relating to the site is to be subject; and any such permission shall, from the date when the conditions to which it is to be subject are finally determined, have effect subject to the conditions which are determined under this Schedule as being the conditions to which it is to be subjected.

(7) The conditions imposed by virtue of a determination under sub-paragraph (6) above -

(a) may include any conditions which may be imposed minerals on a grant of planning permission for minerals development;

(b) may be in addition to, or in substitution for, any existing conditions to which the permission in question is subject.

...

(9) Subject to sub-paragraph (10) below, where, within the period of three months from the mineral planning authority having received an application under this paragraph, or within such extended period as may at any time be agreed upon in writing between the applicant and the authority, the authority have not given notice to the applicant of their decision upon the application, the authority shall be treated as having at the end of that period or, as the case may be, that extended period, determined that the conditions to which any relevant planning permission to which the application relates is to be subject are those specified in the application as being proposed in relation to that permission; and any such permission shall, from that time, have effect subject to those conditions.

(10) Where a mineral planning authority, having received an application under this paragraph, are of the opinion that they are unable to determine the application unless further details are supplied to them, they shall within the period of one month from having received the application give notice to the applicant -

(a) stating that they are of such opinion; and

(b) specifying the further details which they require,

and where the authority so serve such a notice the period of three months referred to in sub-paragraph (9) above shall run not from the authority having received the application but from the time when the authority have received all the further details specified in the notice."

6. Mr Jarman QC, has advanced before this court a new point based on the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations (SI 1999 No.293) as amended by amending regulations that came into force on 15 November 2000. I shall refer to the relevant provisions of these regulations when I come to deal with Mr Jarman's submissions.

Mr Payne's application for judicial review

7. In short, Mr Payne's case before the judge was that the effect of the Council's response to the letter of 19 December 2000, interpreted in the light of paragraph (13)9 of Schedule 13 to the Act, was that the Council was to be treated as having determined that the conditions to which both the 1955 and the 1961 permissions were subject were those specified in the application of 15 December 2000.

Summary of the judge's conclusions on the issues

8. (a) In relation to the 1955 permission the judge allowed Mr Payne's application for judicial review. He granted to Mr Payne a declaration that the Council was deemed to have determined that the 1955 permission was subject to the conditions proposed by him in his application of 15 December 2000. The judge gave permission to the Council to appeal on the ground that it had a realistic prospect of success in an area of uncharted territory.

9. (b) So far as the 1961 permission was concerned, the judge held that upon its true construction paragraph 9(1) does not apply to mineral planning permissions that are no longer extant, whether because development has not been commenced within the time limit, or because it is subject to a time limit for completion which has expired before the application is made under paragraph 9. Accordingly, the Council was entitled to reject the application in respect of the 1961 permission since it was no longer extant. The judge dismissed Mr Payne's application for judicial review of the decision of 19 December 2000 in so far as it related to the 1961 permission. Mr Payne sought permission from this court to appeal against this part of the judgment. We refused his application. Later in this judgment, I shall explain why I consider that he had no realistic prospect of overturning this part of the judgment.

The Council's appeal in relation to the 1955 permission

10. On behalf of the Council, Mr Jarman submits that the judge was wrong to grant the declaration that he granted in relation to the 1955 permission for two main reasons. First, the application of 15 December 2000 was not a valid application at all, so that paragraph 9 to Schedule 13 to the Act was simply not engaged. The purported application was a nullity as regards the 1955 permission since it did not satisfy paragraph 9(2)(c) and/or (e) in that it included conditions that were not for a proper planning purpose and/or did not relate to the 1955 permission, since the uses mentioned in conditions 2 and 3 were outside the scope of what was contemplated by the 1955 permission, and were calculated to threaten rather than protect the environment. On that account they were not conditions which the Council could have imposed since they were not ones envisaged by paragraph 9.

11. Mr Jarman's second main submission accepts that the application was a valid application which did engage paragraph 9. But he relies on provisions of the regulations, whose effect he submits on the facts of this case was to disappply paragraph 9(9). I shall come to this in more detail after I have dealt with the other submissions.

12. Before I deal with Mr Jarman's first main submission, however, I should mention what was advanced as a principal submission before Sullivan J, but which he now relegates to a subsidiary status. This is the contention that the application was invalid because it did not accurately identify the mineral site to which it related as required by paragraph 9(2)(a). In my view this is not a good point. It is true that the plan attached to the application of 15 December 2000 did not identify the mineral site to which the 1955 permission related. But there was contained in the body of the application a reference to the 1955 permission by its date and code number (1722). Attached to the 1955 permission was a plan which showed the extent of the mineral site to which it relates. Paragraph 9(2)(a) requires the application to identify the mineral site to which is relate. Paragraph 1(2)(b) provides that a mineral site is land to which a relevant planning permission relates. Accordingly, the reference in the application to the 1955 permission was sufficient to identify the mineral site to which the application related so far as the 1955 permission was concerned. It identified the mineral site to which the application related as regards the conditions proposed in respect of the 1955 permission as being the land to which the 1955 planning permission related.

13. On receipt of the application in December 2000 the Council could have been in no doubt as to which part of the application site related to the 1955 permission. It is therefore not surprising that in her reply dated 19 December Mrs Amundsen, the Council Development Control Manager, did not say that she could not accept the application in relation to the 1955 permission because it did not identify the 1955 permission site. On the contrary, she said that the 1955 permission site was "included on the First List as a dormant site". She then went on to say that an application could be made to determine new conditions for the 1955 permission under paragraph 9, but not for the 1961 permission since that permission had not been included on the First List and had ceased to have effect.

14. It is unfortunate that paragraph 1 of the application of 15 December stated that the mineral site to which "this application relates" was that delineated and edged in red on the attached plan. That land included the sites relating to both the 1955 and 1961 permissions as well as other land. But if the application is read as a whole, and in the light of paragraph 9 of Schedule 13, it is clear that the application also identifies the mineral sites to which the 1955 and 1961 permissions relate. It would have been preferable if Mr Payne had made separate applications in relation to the two permissions; but I am in no doubt that that has been no breach of paragraph 92(a).

15. I turn to Mr Jarman's first main submission. He points out that the permitted development was the disposal of colliery rubbish, and no more. He says that condition 2 goes outside the scope of such development, because bricks, stone, concrete and builders rubble may derive from non-colliery sources: in other words they need not be colliery rubbish at all. The position is even more stark in relation to condition 3, which is that any of the materials on site may be processed by machinery or otherwise within the confines of the site and exported from the site after processing. The activity envisaged by condition 3 is completely different from the disposal of colliery rubbish by tipping it on the site. At paragraph 35 of his judgment the judge said that he was prepared to accept that:

"... there may be extreme cases where what is proposed by way of condition by an applicant is so plainly outside the ambit of Schedule 13 as to invalidate an application, for example, a suggested condition on a planning permission for mineral working that the erection of six houses be permitted, wholly changing the character of the minerals position. But that is very far from this case."

At paragraph 36 he continued:

"As the claimant pointed out, the 1955 planning permission enabled the deposit of colliery rubbish. That would have included, in addition to mineral waste, such items as bricks, rubble, stone, concrete etc. Then the claim says that his proposed condition 2 did little more than describe, somewhat more accurately, that which had already been tipped upon the site. Whether or not that is so, it is difficult to see that depositing brick, stone, concrete and builder's rubble would, absent any condition limiting the materials that could be deposited, amount to a material change of use from the deposit of colliery rubbish. The proposed condition is not so far outside the scope of the 1955 permission as to invalidate the entire application. The Council's remedy, if it felt that the condition was inappropriately wide, was perfectly simple: it could have imposed its own condition limiting the kind of material to be tipped within the definition of colliery rubbish. For whatever reason it chose not to do so."

16. I respectfully agree with every word of these two paragraphs of his judgment. Sullivan J did not advert specifically to condition 3 because it seems that the main thrust of the arguments in the court below was directed to condition 2 (see paragraph 20 of the judgment).

17. In my view, it is impossible to characterise the second and third conditions proposed by Mr Payne as so fundamentally changing the nature of the 1955 permission that they were not conditions within the meaning of paragraph 9 at all. It is not without significance that in her letter of 19 December, Mrs Amundsen did not refuse to deal with the application because the terms of the second and third conditions took the application outside the scope of paragraph 9 altogether. In my judgment the court should be slow to strike down as a nullity an application solely on the grounds that it proposes conditions which would extend the use permitted by the planning permission. Mr Jarman accepts that it would be going too far to treat as invalid, and therefore a nullity, an application simply on the grounds that it contains a proposed condition which is outside the scope of a permission. It is, he says, a question of fact and degree.

18. I agree with Sullivan J that it is only in an extreme case of departure that it may be possible to say that an application is not an application within the meaning of paragraph 9 at all. It is important that there should be a reasonable degree of certainty as to whether what purports to be a paragraph 9 application is indeed such an application, rather than a nullity that can be ignored by the mineral planning authority. Authorities should not be encouraged to take the view that they can simply ignore applications which contain exorbitant conditions to which they take objection. Their function of protecting the environment against applications which contain such conditions can, and ordinarily should, be performed by responding to applications and dealing with them on their merits, and by rejecting conditions which they consider to be objectionable in appropriate cases.

19. In support of his submission, Mr Jarman referred to R v North Linconshire County Council ex parte Horticultural and Garden Sales (Humberside) Ltd [1997] 76 P&CR 363, 368, where Lightman J said that the two critical features of Schedule 13 of the Act were (a) to secure a definitive list of old, mineral planning permissions continuing to subsist, and (b) to ensure that there are attached to them conditions which adequately protect the environment during the operational period of the site.

20. I would not quarrel with this summary of the critical features of the schedule. The means chosen by Parliament to achieve the second of these objectives is to vest in mineral planning authorities a wide discretion under paragraph 9(6) to determine the conditions to which each relevant planning permission is to be subject. Parliament could have chosen to control the conditions to which a planning control is subject in a different way. For example, it could have provided that an application shall not be entertained by a mineral planning authority unless the conditions proposed by an applicant meet certain specified criteria. But it did not do so. The observations of Lightman J should not be used to construe the words of paragraph 9 as having a meaning which they plainly do not have, or to treat what on its face is a valid, albeit objectionable, application, as if it were not an application at all.

21. I turn to Mr Jarman's second main submission. The 1999 regulations came into force on 15 March 1999 to give effect to Council Directive 85/337/EEC as amended by Directive 97/11/EC. These Directives are broadly concerned with environmental impact assessments. The 1999 Regulations were amended by regulations which came into force on 15 November 2000. I shall refer to the regulations in their amended form. So far as material they provide:

"2. In these regulations ... 'ROMP application' means an application to a relevant mineral planning authority to determine the conditions to which a planning permission is to be subject under paragraph -

...

(b) 9(1) of Schedule 13 to the 1995 Act (review of old mineral planning permissions)...

'Schedule 2 development' means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where -

(b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development.

26A(1) These Regulations shall apply to -

(a) a ROMP application as they apply to an application for planning permission;

(22) Where it falls to -

(a) a mineral planning authority to determine a Schedule 1 or a Schedule 2 application, ... paragraph 9(9) of Schedule 13 to the 1995 Act ... shall not have effect to treat the authority as having determined the conditions to which any relevant planning permission is to be subject unless either the mineral planning authority has adopted a screening opinion or the Secretary of State has made a screening direction to the effect that the ROMP development in question is not EIA development."

22. It is also necessary to refer to Schedule 2 itself. The heading to the schedule is in these terms:

"DESCRIPTIONS OF DEVELOPMENT AND APPLICABLE THRESHOLDS AND CRITERIA FOR THE PURPOSES OF THE DEFINITION OF 'SCHEDULE 2 DEVELOPMENT.'"

Beneath these words appear:

"2. The table below sets out the descriptions of development and applicable thresholds and criteria for the purpose of classifying development as Schedule 2 development."

Beneath these words the table itself is set out. It is divided into two columns. Column 1 is headed "Description of development". Column 2 is headed "Applicable thresholds and criteria". Then immediately below those column headings appear the words:

"The carrying out of development to provide any of the following -"

The entries on which Mr Jarman relies are: "2. Extractive industry"; under column 1 appear the words "(b) Underground mining", and column 2:

"All development except the construction of buildings or other ancillary structures where the new floorspace does not exceed 1,000 square metres."

He also relies on item 11, which is headed "Other projects"; under column 1 appear the words:

"(b) Installations for the disposal of waste (unless included in Schedule 1)"

and under column 2:

"(i) The disposal by incineration; or.

(ii) the area of the development exceeds 0.5 hectare; or

(iii) the installation is to be sited within 100 metres of any controlled waters."

23. Mr Jarman submits that the development of colliery rubbish disposal permitted by the 1955 permission falls within the description of "Underground mining" or "Installations for the disposal of waste" in column 1 of the table. It is common ground that the Council has not adopted a screening opinion and the Secretary of State has not made a screening direction to the effect that the ROMP development in question is not an EIA development. Accordingly, Mr Jarman submits, by reason of Regulation 26A(22)(a), paragraph 9 of Schedule 13 to the Act did not have the effect of treating the Council as having determined that the conditions to which the 1955 permission was subject were those contained in the application of 15 December 2000.

24. In my judgment, this submission must be rejected because disposal of colliery rubbish does not come within either of the two descriptions relied on by Mr Jarman. I do not consider that the tipping of colliery rubbish on a site can properly be described as the "carrying out of development to provide ... underground mining". It is something that is done after underground mining has been carried out and completed. It is wholly artificial to describe the tipping as being an element of, or ancillary to, underground mining. There is a further point. The colliery rubbish whose tipping is permitted by the 1955 permission may not necessarily emanate from the site on which the tipping is to be done at all. Indeed, Mr Payne told us that the mining had ceased on the 1955 permission site in the 1920s, and that the rubbish that has been tipped on it since 1955 is derived from a number of other sites. Once it is seen that there is no link between underground mining on the permission site and the tipping of colliery rubbish on that site, it becomes clear that the tipping of colliery rubbish on that site cannot be part of, or ancillary to, underground mining on that site. The tipping of colliery rubbish from other collieries on the permission site becomes no more part of underground mining on that site than would be the tipping of ordinary waste on it.

25. Nor I do consider that the disposal of the colliery rubbish is the provision of an installation for the disposal of waste within the meaning of item 11 of the table. No installation for disposal of waste has been provided, and none was proposed to be provided by the application. The reference to disposal by incineration gives a clue to what column 1 of item 11(b) is concerned with. It is concerned with the disposal (ie the reduction or destruction) of waste by means of an installation such as an incinerator. It is not concerned with the simple act of tipping waste on to a site. Item 11(b) should be contrasted with items 11(d) and (e) which are concerned with dumping or tipping. They are in these terms:

"(d) Sludge-deposition sites;

(e) Storage of scrap iron, including scrap vehicles."

26. For all these reasons I would dismiss the Council's appeal in relation to the 1955 permission. The Council was not entitled simply to reject a valid application under paragraph 9(1) and treat it as of no effect. In the absence of notice of a decision upon the application within three months or such extended time as may be agreed between the parties, the Council was treated as having determined that the conditions were those specified in the application: see paragraph 9(9).

Mr Payne's application for permission to appeal in relation to the 1961 permission

27. As the judge pointed out, paragraph 9(1) does not refer to extant relevant planning permission: it merely refers to "the relevant planning permissions". Does this mean that an applicant can compel a mineral planning authority to determine conditions in respect of a mineral planning permission which is no longer extant at the time of the application? The judge said no; and I agree with him. At paragraph 23 of the judgment, Sullivan J said this:

"The statutory code is silent on the point raised by the claimant in respect of the 1961 planning permission, but in seeking to give effect to the intention of Parliament, as evinced by the statutory code considered as a whole, the application of ordinary common sense leads inevitably to the conclusion that Parliament did not intend that paragraph 9(1) should apply to minerals planning permissions that were no longer extant, whether because development had not commenced within a time limit, or because they were subject to a time limit for completion which had expired. The purpose of paragraph 9 is to enable applicants to invite mineral planning authorities to determine the conditions which should be attached to relevant planning permissions so as to reflect modern environmental concerns. There would be no purpose in determining what conditions should be attached to a minerals planning permission that was no longer extant at the time of the application. I acknowledge that MPG 14 has no statutory force, but the advice in paragraph 12 (see above) is, in my view, well-founded. It accords with the views expressed by Keene J, as he then was, in the Oldham case. Those views are not binding upon me, but I find them highly persuasive. It would indeed be 'absurd to require the MPA to determine conditions for a lapsed permission."

28. Mr Payne also relies on Part 1 to Schedule 5 to the Town and Country Planning Act 1990 which provides:

"1(1) Every planning permission for development

(a) consisting of the winning and working of minerals; or

(b) involving the depositing of mineral waste,

shall be subject to a condition as to the duration of the development.

...

(5) The condition in the case of planning permission granted or deemed to have been granted before 22nd February 1982 is that the winning and working of minerals or the depositing of mineral waste must cease not later than the expiration of the period of 60 years beginning with that date."

29. But these provisions cannot avail Mr Payne for the reasons given by the judge at paragraph 27 of his judgment in these terms:

"It is plain that the underlying statutory purpose was to impose an overall time limit on mineral permissions, a time limit that was sufficiently lengthy so as not to require the payment of any compensation to those who had an interest in planning permission which were hitherto unlimited in time. By 1982, when the 1981 Act came into force, the 1961 planning permission had ceased to have effect so as to permit the removal of the tip for over 10 years. It was most certainly not the purpose of the 1981 Act to 'revive' such 'dead' planning permissions and to extend them for a period of 60 years. Section 44A(5) (now to be found in paragraph 1(5) of Schedule 5 to the 1990 Act), subject to later amendments dealing with the depositing of mineral waste) applied to planning permissions for development which were still extant at the time when the 1981 Act came into force, not to those permissions which had ceased to permit minerals development by virtue of time limits, whether relating to commencement or completion, on the date when the Act came into force."

30. I cannot improve on what the judge said in that paragraph. In my view Mr Payne's case on the 1961 permission is unarguable. It is for that reason that in my judgment it would have been wrong to grant him permission to appeal.

31. I would add that, having heard what Schiemann LJ has said, I agree with it.

32. LORD JUSTICE MUMMERY: I agree.

33. LORD JUSTICE SCHIEMANN: I also agree, and only add that in relation to the 1955 permission nothing in the decision of this court is concerned to define further the area of the site which is covered by that permission. In order to discover that one must look back at the terms of the 1955 permission.

(Appeal dismissed; application for permission to appeal by Mr Payne refused; any applications in relation to costs on either side can to be dealt with in writing).