Marney, R (on the application of) v Secretary of State for Transport Environment and the Regions & Anor

MR JUSTICE SULLIVAN: In these proceedings the claimant challenges decisions made by an inspector appointed by the first defendant contained in a decision letter dated 27 May 2002 to dismiss his appeals, firstly against an enforcement notice served by the second defendant and, secondly, against a refusal of planning permission by the second defendant.

The enforcement notice alleged a breach of planning control without planning permission, change of use from agriculture to a mixed use for agriculture, and the siting of caravans and mobile homes for habitable accommodation and the siting of an articulated lorry trailer; and required the removal of the mobile home/caravans and other items of equipment ancillary to the use of the habitable accommodation from the land, including the removal of the articulated lorry trailer.

The planning refusal was in respect of a proposal for the siting of a caravan for occupation by an agricultural worker for a temporary period. The appeal site is at Old Wareham Brickworks, Haslemere Road, Brook in Surrey. The inspector held an enquiry on 30 April and visited the site on 1 May 2002. The site is in the Green Belt. It is within the Surrey Hills area of outstanding natural beauty and also within an area of great landscape value. Unsurprisingly, therefore, the inspector identified as the two main issues in the appeal:

The enforcement notice had referred to the siting of caravans and mobile homes for habitable accommodation and two caravans were shown on the plan attached to the enforcement notice. One of them was occupied by the claimant, his wife and two daughters, the other by his mother. However, by the time of the inspector's site visit, pursuant to a court order made in other proceedings, one of those caravans had been removed. The inspector noted that the remaining mobile home was occupied by the claimant and his family.

Stationing a residential caravan in the Green Belt would normally be inappropriate development, so the inspector considered whether this was one of those unusual cases where, exceptionally, isolated residential development in the countryside is justified because it is needed for an agricultural or a forestry worker. To answer that question, he correctly applied the criteria which are set out in Annex I to PPG7. In summary, he concluded that whilst the financial viability criterion had been satisfied, the functional need criterion had not.

In paragraph 13 of the decision letter he set out the claimant's arguments in support of his presence on the site. They were:

He then considered the second issue, the impact on the area of outstanding natural beauty and, having described the character of the surrounding area, in paragraph 20 he said this:

Therefore, in his conclusions in paragraph 21, the inspector said that the development failed the functional test as described in annex I of PPG7; that the proposal would undoubtedly erode the openness of the Green Belt and "would thus conflict with the fundamental aim of Green Belt Policy as described in paragraph 1.4 of PPG 2". He went on in paragraph 22 to say that a mobile home here:

Having dealt with the planning merits, the inspector considered the appeals against the enforcement notice on grounds (c) and (f). By way of background, there were other mobile homes/caravans on the land, together with the lorry trailer, which were being used to accommodate the chickens. The council had made it plain that it was not enforcing against mobile structures used for those purposes. It was solely concerned with the residential presence on the site. The claimant, in correspondence with the inspectorate, made it plain that grounds (c) and (f) were "only pursued in respect of the lorry trailer and the caravans used for agricultural purposes if they are intended to be the subject of the enforcement notices".

So far as the appeal on ground (f) was concerned, having considered whether the lorry body was a truly mobile structure and concluded that it was, the inspector said this in paragraph 27:

The challenge under section 288 to the inspector's decision to dismiss the planning appeal was made on six grounds, as follows.

It was contended that in concluding that the pipes could be buried or lagged avoid freezing the inspector had taken into consideration a matter which had not been canvassed at the inquiry. In a witness statement Mr Church, the claimant's agricultural witness at the inquiry, said that this was not a point which was canvassed with himself, the claimant or other witnesses for the claimant. This complaint is allied with ground (2).

It is said that the claimant proposed to operate a rotational system of husbandry, the units housing the chickens being mobile, so that if the issue of burying or lagging the pipes had been raised, it would have been argued that it was not practical. The inspector therefore failed to take into consideration a matter (that is to say, the rotational nature of the husbandry) which had been raised at the inquiry. Mr Church says in his witness statement that there was evidence that the poultry houses were moved on a regular basis to avoid the ground becoming "fowl sick".

It was contended that although the inspector had considered the possibility of an interruption of power supply he had not considered the possibility of component failure, for example a fan failing, causing the birds to overheat. Nor had the inspector explained how a person living off site could get there in time if there was such a failure.

Although the inspector had considered the issue of fire risk, he did not consider an incident which Mr Church says was mentioned by the claimant, that at his previous farm, Ferring, a hen house had been blown over and he and his wife had had to rescue the birds which had been in some distress.

Mr Church says that the claimant raised the argument that the caravan could be used for purposes ancillary to agriculture. If the caravan remained in such a use, it would still have some impact upon the landscape. Therefore only the additional impact, if any, due to the fact that it was in residential use should have been taken into consideration by the inspector when considering the second main issue, the impact on the landscape. That is linked with the challenge under section 289.

Mr Lea, the claimant's planning witness, said this à propos of the enforcement appeal:

Mr Church explained that:

The application for permission to appeal under section 289 raised the single point that in considering the appeal on ground (f), the inspector failed to take this argument into account; that is to say, that there was no need for the enforcement notice to require the removal of the caravan because it could remain on site if it was used for purposes ancillary to agriculture.

On 30 July I directed that the section 288 application and the application for permission to appeal under section 289 should be heard together. On 9 August a date was fixed for the hearing on 29 October. The claimant's skeleton argument was received on 16 October. The following day, without any prior warning (beyond an earlier hint that evidence might be produced on behalf of the Secretary of State) the skeleton argument on behalf of the Secretary of State was served accompanied by a witness statement from the inspector, Mr Russon.

In his witness statement, the inspector said this in respect of the various grounds of appeal, so far as is material for present purposes:

On 29 October Mr Taylor, who had represented the claimant at the enquiry, submitted that the inspector's evidence should be excluded on the ground that it had been served very late indeed and that prejudice would be caused; for example, he had discarded his notes of the inquiry proceedings in a clear-out of his chambers in September, although he still had certain notes for his submissions and for his questions in cross-examination. I allowed the inspector's witness statement to be adduced in evidence but adjourned the hearing at the Secretary of State's cost to give the claimant a proper opportunity to respond to it. I gave directions that the inspector's notes should be disclosed to the claimant in 14 days and that 14 days thereafter the claimant should serve any evidence in reply.

There then followed a dispute between the parties as to whether I had intended to order disclosure of the whole of the inspector's notes, or merely that part of the notes referred to in paragraph 5 of the inspector's witness statement (see above) relating to the burying or lagging of the pipes. The matter was referred to me for clarification. In the meantime, an application for permission to appeal had been made on behalf of the Secretary of State to the Court of Appeal. I was not told that that application had been made. I clarified my position, which was that I did not require disclosure of the whole of the inspector's notes to the claimant but simply that part of the note referred to in paragraph 5 of the inspector's witness statement. The Treasury Solicitor appeared to be content with that position and supplied that part of the inspector's notes. It simply says:

Unfortunately, due to an oversight, the application for permission to appeal was not withdrawn, nor was the Court of Appeal told of the manner in which I had clarified my order. So on 6 December Buxton LJ refused the application for permission to appeal. In doing so he said this:

Whether Buxton LJ intended to require, or thought that I had ordered, disclosure of all of the notes, or merely all of the notes relating to the issue raised in paragraph 5, is not clear. The claimant's solicitors took the former view and in a letter dated 10 December said that they required full disclosure because an order of the Court of Appeal took precedence. The Treasury Solicitor replied on 18 December referring to my order as clarified and said that if there was to have been any complaint, then it should have been made to me and that "it would be quite wrong to leave this matter to the resumed hearing and then to quarrel about compliance with the order". Thereafter there was silence until a witness statement of Mr Taylor dated 31 January 2003 was served. This statement has been served way out of time, whether the 14 days is taken from my clarification of the order of 29 October, or Buxton LJ's judgment, or the Treasury Solicitor's letter dated 18 December. I intend no criticism of Mr Taylor when I say that no explanation has been forthcoming as to why his witness statement is so late. We simply do not know when he was asked to provide the statement.

Mr Boyle, quite understandably, is unable to assist. He has been instructed only very recently and there is no witness statement from his instructing solicitor today. Nevertheless, he invited me to admit Mr Taylor's witness statement and to order disclosure of the full text of the inspector's notes. I am prepared, with considerable hesitation, to admit Mr Taylor's witness statement despite the fact that it is very late because, for reasons which will become clear in due course, I do not consider that such differences of recollection as there are between himself and Mr Russon are critical to the determination of the grounds of challenge. I am not prepared to order any further disclosure of the inspector's notes. I accept that the court has power to order disclosure if it is necessary to do so in the interests of justice, but the short answer to Mr Boyle's application is this: if the claimant had wanted further disclosure of the notes in the light of Buxton LJ's observations and/or any dissatisfaction with the manner in which I had clarified my order, then an application to that effect should have been made long before this morning. It is simply far too late to make the application, and in any event I do not accept that the notes are necessary in order to resolve any disputes which are critical to deciding this matter.

Against the background of this unfortunate procedural history, I turn to the grounds of challenge.

Mr Taylor says in paragraph 6 of his witness statement:

Mr Boyle referred me to the decision of H Sabey & Co Ltd v Secretary of State for the Environment and Others (1978) 245 EG page 397. He submitted that in the present case, as in Sabey, this issue arose by way of a side wind and therefore the claimant did not have a fair opportunity to answer it. I disagree. There is a world of difference between the present case, where the issue was simply whether laying pipes in the ground or lagging them would obviate the problem of them freezing, and the highly technical issue which had been raised in Sabey, that is to say the effect of removing gravel on moisture levels in the soil and thus the soil's compatibility with future high agricultural yields. That very technical issue had been raised only by way of a general question put by the inspector at the conclusion of the re-examination of the witness for the Ministry of Agriculture, Fisheries and Food. Upon that slender evidential basis it then became the determining issue in the Sabey case.

In the present case, by contrast, the claimant's veterinary expert, Mr Stimpson, had raised the need for a consistently available water supply in his evidence. The hazards of water freezing must be self-evident, as must be the possibility of burying and or lagging pipes in order to prevent them from freezing. The issue was specifically raised by Mr Burne in his evidence in chief. He had referred to the welfare code, to which the inspector referred in paragraph 18 of his decision letter. The welfare code deals with the question of feed and water, makes the point that adequate fresh water must be available at all times and then says this: "Efforts should be made to minimise the risk of drinking water freezing." That reference in the evidence in chief, coupled with the fact that the matter was raised during Mr Burns' cross-examination, were sufficient to identify this as an issue so as to give the claimant an opportunity of answering it if he wished. There was an opportunity to ask for the claimant and/or his witnesses to be recalled to deal with the question of burying pipes or lagging them if that was thought appropriate.

In any event, one has to stand back from the procedural niceties and consider the matter in the round. An inspector is, after all, entitled to use his or her own common sense. If the necessity for a consistently available water supply is one of the issues in a case, then it must be a matter of common sense that some steps should be taken to prevent the pipes from freezing. It must equally be a matter of common sense that this can be achieved by burying them in the ground and/or by lagging them when they are above ground. These propositions do not require any greater technical expertise than is possessed by the average handyman and/or gardener. Thus I do not accept that this was the kind of issue where the claimant was unfairly deprived of an opportunity to comment. The issue was staring everybody in the face and the inspector provided the obvious answer.

That leads on to ground 2.

The only reason why it is said that the obvious answer is not the right answer is the rotational husbandry point. It is said that burying or lagging the pipes would not be practical because of the way in which the birds are looked after, in accommodation which is mobile. The inspector does not recall this issue having been raised. Mr Taylor says in paragraph 7 of his witness statement:

Against this background, it is difficult to see why the rotational system should be an obstacle to burying or lagging the pipes. The inspector recognised in paragraph 14 of his decision letter that it would not be possible for the pipes to be buried for the whole of their length:

I turn, therefore, to ground 3.

In my judgment paragraph 7 of the inspector's witness statement is a complete answer to this point. It is perfectly true that there could be component failure as well as an interruption to the power supply itself. It is equally true that if the alarm is temperature-controlled, then a component failure will trigger the alarm, as pointed out by the inspector.

If one turns to paragraph 15 of the inspector's decision letter, it is plain that the inspector had well in mind the time needed in order to respond to an alarm. He pointed out that the settlements of Haslemere and Milford are only a few minutes' drive away from whence there would be easy and quick access to the farm. Thus he considered whether or not, as a result of a failure in the electricity supply, there could be a sufficiently prompt response. The same argument applies to any response to a component failure.

The starting point must be that an inspector in a decision letter is not required to respond to each and every point raised by the appellant and/or the local planning authority. He has to deal with the principal points. In paragraph 13 of his decision letter the inspector accurately identified the four matters which had been relied upon by Mr Stimpson, the claimant's veterinary adviser: integrity of water supply, electricity supply, security and fire safety. The blowing over of the hen house on a previous occasion was not raised in Mr Stimpson's evidence, nor was it raised in the claimant's written proof of evidence. I am happy to proceed on the basis that he did mention it in his oral evidence, as the inspector recalls him making a brief reference to a storm occurring at his previous farm which caused some difficulties. But it was not a principal plank of the claimant's arguments and the inspector was therefore not obliged to refer to it. He dealt with the principal concern raised by Mr Stimpson: fire risk.

It is important to remember the context in which the inspector was considering the matter. Although there had been two caravans in residential occupation on the site when Mr Lea wrote his proof of evidence, there was only one by the time of the site visit. That sole caravan was occupied by the claimant and his family. Since the claimant was arguing that planning permission should be given for the caravan to remain as his home and reference had been made to Article 8 of the European Convention on Human Rights in the grounds of appeal in relation to the enforcement notice, it was a theoretical suggestion, rather than a practical possibility, to postulate that it might remain on the site and be used for agriculture. That point is underlined by the inspector's attention having been drawn to the fact that the caravan was a modern structure and in good condition. That is not challenged by the evidence so very recently put in on behalf of the claimant.

In any event, it is plain that the inspector was well aware of the fact that other caravans used for agricultural purposes were on the site. He refers to them in paragraph 24 of his decision letter and also in his description of the appeal site. He was, therefore, well aware of the effect of such caravans used for agricultural purposes on the landscape. Hence his conclusion in paragraph 20, which is plainly directed towards the caravan occupied by the claimant:

There is a further answer to this ground of challenge. The inspector had identified two main issues, Green Belt and impact on the area of outstanding natural beauty. It is plain from his conclusions in paragraph 21 that he had concluded that the development conflicted with the fundamental aim of Green Belt policy. Absent any other countervailing circumstance, the appeal on the planning merits was therefore doomed to fail. No such circumstance is identified. The inspector did not say that this was a closely-balanced case where other factors had to be balanced against the harm to Green Belt; rather there was a fundamental conflict with Green Belt policy. In addition, there was also serious harm to the character and appearance of the Surrey Hills AONB. The latter was simply an additional reason to refuse permission. The position would not alter even if the force of the latter reason was somewhat reduced by reason of the fact that on a hypothetical basis the claimant's caravan could remain on site and be used for agricultural purposes and would therefore still have some visual impact even though shorn of its "inevitable domestic paraphernalia". It is plain that the outcome of the appeal on the planning merits would have been precisely the same.

I turn therefore to ground (f). Again, the context is all-important. Mr Lea, at the time when two caravans were on the site, had suggested that one might remain in agricultural use. By the time the inspector came to consider the matter, one of those caravans had gone, thus leaving the claimant's own caravan, which he was occupying as his home with his family. Apart from the evidence of Mr Taylor that he raised the landscape impact of retaining a caravan for agricultural purposes, there is no suggestion that there was any evidence to the effect that the claimant would in truth be prepared to abandon his home and convert it to agricultural use. The argument was put, as the inspector said, on an entirely theoretical basis of what would be the landscape impact if a caravan remained in agricultural rather than residential use. I am reinforced in my view that this is an entirely theoretical argument by the fact that it did not feature in the claimant's skeleton argument.

The inspector, when considering the appeal under ground (f), understandably concentrated upon the lorry, which by that stage was in agricultural use. It is plain that he considered that those caravans (together with the lorry) which were already in agricultural use should be excluded from the enforcement notice, which should bite only upon the residential use. Thus he varied the enforcement notice so that it required removal from the land of "the mobile home/caravans in use for residential accommodation." If the claimant genuinely wishes to use the caravan which is presently his home for agricultural purposes, then he will not be prevented by the enforcement notice as varied by the inspector from bringing it on to the land for use for such purposes. The enforcement notice is directed at the caravan which was in use for residential accommodation. The inspector was required to consider the position as he found it on the ground. He was not required to consider hypothetical arguments. It is plain that the claimant wished to retain that caravan as his home, ie for residential accommodation. Thus the inspector was entitled to deal with the ground (f) appeal in the way that he did.

For these reasons I am satisfied that the application under section 288 and the application for permission to appeal under section 289 must both be refused.

MR BOYLE: I am grateful, my Lord. The question of the injunction. Can I hand up a copy (handed).

MR JUSTICE SULLIVAN: Yes.

MR BOYLE: My Lord has there a copy of the injunction issued by Mr Burton. The critical part is on the second page. You see paragraph 1: "remove all mobile homes and caravans .... except .... for agricultural purposes", but also "except as provided below", and then a restraining section, but 3 is where we come to:

MR JUSTICE SULLIVAN: Yes.

MR BOYLE: So in (1) of 3:

MR JUSTICE SULLIVAN: We have got beyond that, so we are now to (2): "if [he] dismisses the .... appeal". Yes. Then you have to challenge and so forth, and provide an extension. So where are we now?

MR BOYLE: It is another unfortunate trail, I am afraid. The proviso may be extended under 3(2)(b). Clearly the judge had it in his mind that if the -- first defendant as it is there, the claimant here, Mr Marney -- appealed to this court -- and he has given him 14 days in which to do it -- he can apply for an extension of the proviso; but (c) over the page, that application should be made to the court or judge served with the challenge.

MR JUSTICE SULLIVAN: Right. Nobody made any application to me, so far as I know.

MR BOYLE: I am about to come on to that in a a moment, if I may. So it would appear the correct person to approach for the extension of the proviso is the judge or the court before whom the challenge is made under section 288/289, rather than Mr Justice Burton. However, 3 continues: "Liberty to apply on paper in relation to this order .... to Mr Justice Burton." So quite separate from all of that, if a problem arises, you can come back, says Mr Justice Burton, to me. In the claim form, my Lord will see in section 10, "Other applications".

MR JUSTICE SULLIVAN: Are we in 288 or 289?

MR BOYLE: I am in 288. I have not checked across but I hope the same point is there too. Section 10 of the claim form. You will see 3: "The Order of Mr Justice Burton .... do be varied under the provisions of section [that is section of the order] 3(2)(b) to grant an extension of the Proviso to allow the Claimant and his family to remain on the land until the final determination of this application".

As always with this case, nothing is as simple as it should be. What in fact happened -- and I have the application here -- the 14 days from 27 May -- that is the decision of the inspector -- takes us to 10 June, assuming it is communicated on the same day; I do not know that, but let us assume it for present purposes. So 10 June. By 10 June no application to the court had been made, so the proviso was about to run out. It was made on 20 June when the application to the court was put in. I will come back to that. So the proviso is about to run out and on 10 June, by an application notice, the claimant's solicitors applied for an extension of the proviso of the order of Mr Justice Burton, having regard to the proposed application to the High Court by the defendants.

MR JUSTICE SULLIVAN: Right; yes. Who did they apply to? Mr Justice Burton, or just generally?

MR BOYLE: It looks like a general application. It does not actually identify to whom. It just says "Level of judge: High Court Judge"; it does not say anything more than that. Properly analysed, that would appear to be, under (3), an application which should have been directed to Mr Justice Burton. It is not an extension under 3(2)(b)/(c), which would have to be made to the judge who was to hear the 288/289 application. However, solicitors for the local authority objected to the way in which that application was put in to the claimant's solicitors and said "What you have put in should in fact be being made to the judge who is to hear the 288/289 application".

MR JUSTICE SULLIVAN: I think this case possibly ought to be referred to the textbook writers on procedure as an example of how not to do things, possibly, on all sides. I exclude the council from that, for the moment.

MR BOYLE: The threat had been apparently that the authority were going to enforce, pending going for committal. That was the point. So things were being put in at a rate in order to try and fight this off.

MR JUSTICE SULLIVAN: Could you just tell me at the moment what I am being asked to do. I assume Mr Marney is still on site in his caravan. Now the thing has come to an end, at least as far as I am concerned, what are you asking me to do? I am not clear whether I am meant to be retrospectively authorising something that apparently has been taking place in breach of another judge's order, which I would be most reluctant to do. It seems to me the way to deal with that, if there has been any hiatus, is to go back to Mr Justice Burton and explain all this to him. I am sure he would be very pleased to know that I suggested you go back to him and explain it rather than me, but I am just here to decide whether or not an appeal against the Secretary of State's decision letter is valid. I have said it is not and therefore, subject to considerations of a certain degree of time and conceivably -- I do not know whether you are going to be asking for permission to appeal against my decision; you cannot appeal against the refusal of permission for the enforcement notice but the section 288 -- if you are, then again, subject to what Mr Morshead may say, and subject to a very tight time limit, I might well be prepared to extend a stay for a matter of a few days or so because clearly it is not sensible for me to make an order that would have the effect of Mr Marney being chucked off the side and then the Court of Appeal two days later to say "Permission to appeal against Mr Justice Sullivan's judgment." It would be pointless. Those are just my preliminary thoughts. Otherwise I have a nasty feeling that the procedural is going to take ages.

MR BOYLE: I am going to approach it then in this way.

MR JUSTICE SULLIVAN: What are you wanting?

MR BOYLE: What I am asking my Lord to do is to extend under the proviso the time whereby the injunction to get off the land bites. I make it plain that for present purposes I am not asking your Lordship to go back retrospectively and consider the question whether or not there has been contempt of the order as it currently stands, because that is a a matter for somebody else, and indeed it is up to the authority whether they really are minded, think it is expedient, to commit somebody for that. My application now is to extend under the proviso the time for compliance.

MR JUSTICE SULLIVAN: How long?

MR BOYLE: Well, the inspector's -- forgive me, the enforcement notice -- gave six months. Now I do not know, and cannot tell my Lord, why Mr Justice Burton said you shall remove the caravan within 14 days of the Secretary of State's decision, because of course the Secretary of State's decision is what would reactivate the enforcement notice. That would still give 14 -- no, sorry, still give six months.

MR JUSTICE SULLIVAN: There was not any application to extend the time, was there. There was not an appeal on time, so it would be six months from 27 May.

MR BOYLE: Six months from, yes, 27 May.

MR JUSTICE SULLIVAN: May 2002.

MR BOYLE: Yes. What it would not be was 14 days from 27 May. So where the 14 days came from, I am not quite sure. So what I am asking this court is that now that the matter has been held up by the challenge, instituted and now dismissed, that the six months runs from today and that is when the enforcement notice comes into action. That is all.

MR JUSTICE SULLIVAN: I am not sure .... if we just set aside this injunction for a moment. So far as a practical consequence of my decision is today -- assume there is no appeal and so forth -- is it right that the six months runs now from today? I think it is.

MR BOYLE: The enforcement notice is suspended until it is finally determined. I see others looking up the point. And it is for that reason that we do not need to be caught by an injunction which looks as if it says -- well, it does say -- get off within 14 days, based on an enforcement notice which gives you six months to get off.

MR JUSTICE SULLIVAN: Well, yes. I would simply like to understand what Mr Morshead says about this timetable from the council's point of view. Mr Morshead, can you help me.

MR MORSHEAD: My Lord, yes. It would be application for an injunction made by the council which prompted the order that your Lordship has been referred to, of course entirely unrelated to the enforcement notice which was the subject of the section 289 appeal which your Lordship has just now dealt with. In order to put in into its context more fully it is necessary, I am afraid, to take you to two orders to which my learned friend has not referred you. The first is the order in contempt which Mr Justice Burton held Mr Marney to be in  April, and the second is the order that Mr Justice Burton made on the application of Mr Marney, to which my learned friend has just referred. If I can hand that up as a clip to your Lordship, it has in the middle the order dated 12 April that is already in the bundle.

Your Lordship will see that the chronology starts with an order made by consent in my client's, in the council's, application for injunction proceedings. Underneath paragraph 3 your Lordship sees -- under paragraph 2, first of all, a blanket obligation freely undertaken by the defendants to remove all .... 

MR JUSTICE SULLIVAN: That is right.

MR MORSHEAD: And a timetable specified there in paragraph 4. Again there was some misfortune in the processing of the order because, although it was agreed to at the end of the year 2000, it got lost in the court's office, as I understand, with the result that when it came before the master for sealing, he substituted the date that your Lordship sees, 12 March, for final compliance, at the bottom of the page. That now is of historic interest because by the time matters came on when my client had tried to commit Mr Marney, who did not comply with the terms of that injunction, it was 12 April 2002 and that is the order that your Lordship has seen and your Lordship has seen the proviso to that order.

Mr Marney does seem to have made an application in the Queen's Bench Division to Mr Justice Burton. I have to say that I have not seen, and my client has not seen, a copy of that application, but clearly -- I am told that we saw a copy of the application that was to be made to Mr Justice Burton but we were not served with the application itself -- but on the back of that effectively ex parte application, Mr Justice Burton made the order accompanied with the detailed judgment that your Lordship sees here. It would perhaps be helpful for your Lordship to cast an eye over that, because your Lordship will see that Mr Justice Burton was very anxious that this matter should not become bogged down without your Lordship, seised of the judicial review proceedings, taking a view about whether it was appropriate for Mr Marney to be allowed to remain on the land, having regard to the merits of any prospective application that may remain outstanding.

MR JUSTICE SULLIVAN: You say a judgment. I am not sure I have a copy of his judgment.

MR MORSHEAD: It is under the rubric of an order. Your Lordship will see it, I hope, at the penultimate page of the clip that I handed your Lordship

MR JUSTICE SULLIVAN: I see.

MR MORSHEAD: Under the rubric of an order it is quite a detailed judgment.

MR JUSTICE SULLIVAN: Should I read it?

MR MORSHEAD: If your Lordship would not mind. (Pause)

MR JUSTICE SULLIVAN: He has made an order that, "unless application is issued by the first Defendant at the Administrative Court by 4.30 pm on Wednesday 10th July" -- was that done?

MR MORSHEAD: No, my Lord.

MR JUSTICE SULLIVAN: ".... the first Defendant shall thereafter diligently comply with the time limits .... the proviso shall cease .... shall have liberty to enforce, free of the proviso".

MR MORSHEAD: My Lord, the date of that order of course is 3 July, which post-dates the only other application of which we have any understanding at all, which is the application in the bundle at page VIII, which -- I think my learned friend took you to section 8 of the appeal described before, which clearly did not constitute, in the view of Mr Justice Burton or indeed the claimants, an application to your Lordship.

So the position is that the claimant is out of time, not on an interlocutory matter, but a final matter and not only a final matter but a final order made, as it were, in mitigation of the ordinary consequences of the finding that the claimant was in contempt of court. So it is not simply a case of Mr Marney applying under the relief from sanctions provision of the CPR for an extension of time. Mr Marney is clearly in breach of the only set of circumstances that would have exonerated him from being in contempt of court.

My Lord, it may be said against the council that if it were concerned about that matter it was open to it to apply to commit Mr Marney as soon as 10 July had gone. Of course it is one thing for the council to decide to await the outcome of the proceedings which have now concluded before your Lordship, but quite another for it to take on the chin the idea that there should be yet further delay built into the timetable within which it is open to the council to issue. And one can imagine what in reality would have happened if the council had tried to commit. It would have been Mr Marney's short answer that the hearing before your Lordship, for reasons that would have had to have been explored, was not going to come on until February of this year. That matter is historical interest. It has been dealt with. That excuse is not available. In our submission it is not open to Mr Marney at this stage to pray in aid the applications that are now spent before your Lordship as a reason retrospectively for granting an extension of time, he having failed both to comply with the timetable set down by Mr Justice Burton and, I have to say, it seems, having failed to draw that background matter to your Lordship's attention. Certainly it seems most doubtful whether it could be said that the matter has been processed with the degree of expedition Mr Justice Burton has in mind.

So what we would urge upon your Lordship is that any debate about the implications of the injunction should be stood over to what your Lordship may anticipate will be an application by my client to commit Mr Marney for contempt. Certainly what Mr Justice Burton did not envisage was an application retrospectively made once a section 289 appeal, 288 appeal had been heard.

MR JUSTICE SULLIVAN: Thank you. Mr Boyle, I frankly do not feel I can get on top of the injunction issue which, as I say, I have not really begun to consider at all until after giving judgment. I am inclined to stand over any application that may be made. I am not really convinced that I actually have a proper application in front of me anyway in respect of the injunction, and I simply do not know enough about the background and so forth. So I am not prepared to make any order in respect of that. There is, you have said that the claim form under (2)(b) ....

MR BOYLE: That at section 10 is what the claimant considered to be its application to my Lord under the proviso. I may say that I had not seen this further order until handed it by my learned friend a moment ago, which is why I had not brought to my Lord's attention, and I am, as I stand here, unable to explain how, given the terms of section 10, if the judge knew about it, he still did not consider that no application had been made to the Administrative Court, which is his third from last paragraph. In the circumstances, I respectfully agree with my Lord that the better approach may be to stand the matter all over. If it is right that there is to be an application for committal, then these matters may be better dealt with there by those properly instructed in relation to them.

MR JUSTICE SULLIVAN: I think that would be the better course, quite frankly -- not least since it is ten past four.

MR BOYLE: I am grateful. My Lord will be relieved to hear I have no further applications to make.

MR JUSTICE SULLIVAN: No further applications. Thank you very much indeed.

MR COPPEL: That leaves, my Lord, my application for costs. There has been a statement of costs prepared. Might I hand it up, my Lord. (Handed) Your Lordship will see that it is actually the statement which had been prepared for the hearing on 29 October. The view taken by the Treasury Solicitor is that if we remove the 29 October references and put in today's date, it comes out to exactly the same thing.

MR JUSTICE SULLIVAN: Yes. So he is light on one hearing.

MR COPPEL: Yes, he has removed one hearing and replaced it with another.

MR JUSTICE SULLIVAN: I see that, yes.

MR COPPEL: So, my Lord, I do ask that you make a summary assessment of costs of £7,126.

MR JUSTICE SULLIVAN: Can you resist the principle or the detail?

MR BOYLE: I do not resist the principle. I do not resist the individual figures. I do resist, however, this. My Lord will recall that the order that my Lord made last time in October was that the costs of that day be assessed and be paid by the defendant on an indemnity basis. My Lord, what we have been provided with now is the Secretary of State's costs from last time, to which they are not entitled, but by replacing the dates, they are saying they are entitled to them for today in lieu, as it were. My Lord, what the court does not have is any indication of what are the real costs incurred since the date where they became liable to indemnify the claimant. That matter would need to go for assessment. I cannot in any way comment on what is listed there, nor can my Lord, with respect, because those are matters which may very well have been raised pre the October date, but dated by now.

MR JUSTICE SULLIVAN: Well, except that, as I understand it, the way this is done is to say "Ignore the abortive hearing in October. We would have to have all this work done on attendances to so forth for a hearing today. Just assume it had been today and so let us take it as a proxy for today." I am bound to say it seems to me that on a rough and ready basis, which is really all we are meant to be approaching this on, that does not seem to be objectionable. In so far as you have incurred costs for yourselves on 29 October, the Treasury Solicitor will have to pay those, but the Treasury Solicitor is entitled to claim the costs as represented by preparing the case, getting it ready and having one day in court.

MR BOYLE: My point is simply this, my Lord. These are supposed to be real costs with real times, attached to cash multipliers, and they are not the real times as of today's hearing but they are the real times of a previous hearing. It is as simple as that.

MR JUSTICE SULLIVAN: Thank you both very much. The application under 288 is dismissed. The application for permission to appeal under 289 is dismissed. The claimant is to pay the Secretary of State's costs. Those costs are to be summarily assessed and I summarily assess them in the sum of £7,126. I am satisfied that they as are near real-time as we are likely to get without quite disproportionate further expenditure on working out what is real real-time. So that is costs. Can I just check: when I was invited to stand over any question of the injunction, Mr Morshead, you have not made any application to me, so I do not need to make any order in respect of you, if I may say so; Mr Boyle, it is not clear to me whether you were formally making an application that I am required to stand over, or make some other order in, or whether you were not. Are you making the application that is referred to in the claim form?

MR BOYLE: Yes.

MR JUSTICE SULLIVAN: Mr Morshead, you are agreeing that the sensible thing to do is that, without entering into detailed argument whether that was an appropriate application to make and so on, I simply stand that matter over, which will enable Mr Boyle at least to raise the matter if and when the council makes an application for committal. Otherwise it just floats around as an application that was made which has not been dealt with.

MR MORSHEAD: In fact we would invite your Lordship, if this be an application -- I say that because it is said that a Part 23 application, form N244 is attached, and it is not; there is no application -- but if it be an application, we invite you to dismiss it. The substantive question of what are the consequences of Mr Marney having or not having complied with the terms of Mr Justice Burton's order as the case may be, will fall to be washed out in any application for committal for contempt which has not yet been made. But the right way to stop there being an application, if this be an application, from floating around is to dismiss it at this juncture.

MR JUSTICE SULLIVAN: I am simply going make no order in response to the request in paragraph 3 of Part A in section 10 of the claim form. That means I am expressing no view at all on whether there was a valid application. I simply express no view about it so that as to leave entirely at large the question of the injunction, whether or not it has been complied with, whether or not there has been contempt and so forth.

MR COPPEL: My Lord, one final matter to prevent a further application for clarification. It is clear to the Secretary of State but I wonder if your Lordship can clarify that the order made by your Lordship on the 29th is that the Secretary of State pay the costs of the day of 29 October and not all the costs leading up to that as a result.

MR JUSTICE SULLIVAN: Oh yes, yes.

MR COPPEL: I am grateful.

MR JUSTICE SULLIVAN: Yes, it is simply the costs thrown away by having the unnecessary day.

MR COPPEL: I am grateful.

MR JUSTICE SULLIVAN: Right. Any more for any more? Thank you all very much.