Royal Courts of Justice
Strand
London WC2A 2LL
B E F O R E:
MR JUSTICE COLLINS
NATIONAL ANTI-VIVISECTION SOCIETY
(CLAIMANTS)
-v-
FIRST SECRETARY OF STATE
(DEFENDANT)
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MR NEIL KING QC AND MR RICHARD WALD (instructed by Navarro Nathanson, London WC1X 8RW) appeared on behalf of the CLAIMANT
MR PHILIP SALES AND MR CLIVE LEWIS; MISS A PROOPS (on 30.07.04 only) (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the DEFENDANT
J U D G M E N T
Friday, 30 July 2004
MR JUSTICE COLLINS: This claim relates to a planning permission granted by the First Secretary of State in November 2003 to the University of Cambridge to enable it to construct a building to be used for research within Group B1(b) of the Use Classes Order at 307 Huntingdon Road, Cambridge. The research in question is medical research involving tests on animals, including in particular non-human primates or, generally speaking, monkeys. This is what has led to the concern of the claimants.
An animal research establishment at 307 Huntingdon Road has existed for over 50 years. A number of planning permissions have been granted as there has been additional building on the site. In 1966-1968 there was a construction of a number of surgeries, laboratories and animal housing, and in 1970-1973 of a number of specialist units and housing for larger animals. To keep animals for research use requires licences from the Home Office, which must be satisfied that the accommodation is satisfactory and proper measures are taken to ensure that the animals do not suffer more than is inevitable from the experiments undertaken. It was recognised that if the centre was to attract top quality research scientists and achieve the best results extensive rebuilding was needed to improve all the facilities and to enable all animals, in particular non-human primates, to be properly accommodated.
The first application for planning permission was submitted by the University in September 2000. It involved a larger building complex following demolition of a substantial part of the existing buildings. The local planning authority, the South Cambridgeshire District Council, refused permission. The site is in the Green Belt. The Council's main objection related to the likelihood of continuing protests against the use of animals and the effect of such protests. It also considered that insufficient efforts had been made to identify alternative sites.
The University appealed. After a hearing, which sat over 11 days between 16 November 2002 and 9 January 2003, the Inspector recommended dismissal of the appeal. His lengthy and detailed report is dated 7 March 2003. The First Secretary of State disagreed with his recommendation and granted planning permission. Hence this claim.
I should only add that the University has since announced that it is not going ahead with the permission which had been granted. On 27 January 2004 the University issued a statement from the Pro-Vice-Chancellor, which said:
"The University of Cambridge, like many other UK universities, faces an uncertain financial future. What was an acceptable risk five years ago is no longer the case.
This has not been an easy decision to reach but ultimately, we have a responsibility to our students and staff not to take financial risks of this magnitude, and we believe that although regrettable, this is the right course of action.
The animal rights groups will of course claim this as a victory, but in our view they have won no arguments whatsoever. We still believe this work to be of significant national importance and we are already exploring with the medical research funding agencies other ways of continuing this work."
There was more, but I need not read it.
The risks that are there referred to are said, certainly by the media, to result from the added costs that would be incurred in security measures because of the likely activities of so-called animal rights groups. I should emphasise that the claimants in this case, and the others who appeared with them at the inquiry, have never encouraged or indulged in unlawful activities. But there are those whose opposition to the use of animals for research has resulted in direct and unlawful action. Furthermore, cost can be incurred in dealing with any sort of protest.
It may be thought that in those circumstances this claim would become academic. That is not so, because the planning permission runs with the land and the permission is for a research centre which could now include any sort of research. It is important to remember that this is in the Green Belt and accordingly, as will become apparent, it was necessary to show very exceptional circumstances to justify the development; and those circumstances are said to be the need for this sort of a research centre. Quite apart from that, a standard condition is that the development permitted by a planning permission must commence within five years of its grant. It may well be that within that period circumstances change and the University does decide to go ahead with the development for which it has permission. It would then be too late to challenge the grant of permission. Accordingly, this claim is not to be regarded as academic.
Mr King QC for the claimants relied on three grounds. The first related to the approach taken by the First Secretary of State to what was said to be Government policy. The need for the development had to be established because in order to justify such a development in the Green Belt very special circumstances had to be established. The University relied on Government policy, identified particularly in two letters from Lord Sainsbury, a minister in the Department of Trade and Industry, that a research centre such as was proposed in, or sufficiently close, to Cambridge was needed and it was in the national interest that such a centre should exist. The Inspector's view, with which the First Secretary of State disagreed, was that evidence must be produced to establish that need. Thus the scientific case for and against the need for research on animals, and in particular on non-human primates, should be examined. The failure by the University to produce any witnesses to confirm the scientific case, coupled with the First Secretary of State's reliance on what was alleged to be, but what in reality was not, Government policy, led, it was submitted, to an irresistible inference that the decision to grant planning permission had been preordained and was a foregone conclusion.
Secondly, it appeared that the First Secretary of State had called for sight of all the documents provided to the Inspector. The Inspector had not originally forwarded statements of witnesses, no doubt because they did not necessarily give an accurate picture of their evidence following cross-examination. Unfortunately, those statements of the two witnesses called by the claimants who, together with a number of other like-minded organisations, had joined together to be represented under the title "The Coalition" had in error - and it is accepted that this must have been human error with nothing sinister to be inferred from it - been omitted altogether by the Inspector in the schedule to his report, which listed all the documents which had been before him, and so were not forwarded to the First Secretary of State. One of the statements was that of the Coalition scientific witness, Dr Greek. The other was of its planning witness, a Mr Keene. It was submitted that this produced unfairness in that the First Secretary of State had copies of all statements other than those of the witnesses called by the Coalition.
Finally, it was submitted that since it was only because of the need for an animal research unit such as was proposed which should include non-human primates, that permission was given, the First Secretary of State ought to have imposed a condition which ensured that the use of the centre, if the development took place, was limited to such research. Somewhat paradoxically perhaps (or so it would appear), Mr King initially submitted that it ought to have been limited to non-human primate research. However in the course of argument, although not completely resiling from that contention, he modified his submission to say that the condition imposed should have limited the use to animal research.
I have identified the grounds relied on in order to indicate the extent of the matters to which I need refer in this judgment, and in particular to avoid going through what are, for the purpose of this claim, irrelevant parts of the Inspector's report or the First Secretary of State's decision. At a pre-inquiry meeting held on 16 September 2002 the Inspector said that the likely material considerations upon which the First Secretary of State would wish to be advised included the following:
"• The national and local policy framework
• Green Belt matters
• Need for the research establishment
• Security
• Highways and highway safety
• Alternative sites
• Additional local resident issues including
noise/disturbance, pollution and fear"
The Inspector clarified that it was not within his gift, as he put it, to hear evidence on public health, the welfare of animals and the moral arguments about using animals as part of a research programme. The first two items were covered by other legislation and, as planning legislation made clear, in such circumstances the primary legislation should be relied on. The moral arguments were a matter for Parliament. He indicated that closing submissions to set out the case which each party wanted to be transmitted to the First Secretary of State would be required. Any draft conditions should, in case he were minded to allow the appeal, be prepared by the Council (the local planning authority) in consultation with the appellants (the University).
In paragraph 14.2 of his report the Inspector sets out what in the end he regarded as the material considerations. He said this:
"In this case, there is no dispute that the appeal site lies in the statutory Green Belt or that within this designation the erection of a new building for a B 1 (B) use constitutes inappropriate development. Accordingly, the First Secretary is obliged to determine this appeal in accordance with a presumption against allowing inappropriate development in the Green Belt, unless there are very special circumstances to justify an exception and which clearly outweigh the harm to the Green Belt and all other harm. In establishing the balance between the identified very special circumstances and the perceived harm I find the following to be the main material considerations:
The planning policy framework;
• The need for the proposal;
• Security/demonstrations and the consequences;
• The effect on local residents;
• The visual impact and harm to the Green Belt;
• Alternative sites;
• Other material factors."
He then deals with all those in the course of his report.
The preceding 70 or so pages of the Report contain verbatim reproductions of the summaries of their cases produced by the various parties who had attended the inquiry. There was also a summary by the Inspector of relevant objections which had been submitted in writing by persons who had not themselves taken part in the inquiry.
The First Secretary of State agreed with the Inspector's conclusion that, because this was development in the Green Belt, it was necessary for the University to show that very special circumstances outweighed the harm from any other source. Thus, material to consider whether it was in the national interest and whether need was established was relevant. At paragraph 14.15, the Inspector considered the need for the appeal proposal and in the following paragraphs through to 14.39 he elaborates his conclusions in relation to that. I do not propose to read all that he says, but it is important, obviously, to deal with the significant parts of his reasoning. At paragraph 14.16 he says this:
"What is before the SoS in this case are letters from the DTI confirming that Government views this proposal to be in the national interest. The contention by those objecting is that the points referred to in these and other supporting letters, are all subjective and assertive. They do not go to the heart of the matter of deciding whether the scientific or medical value of a proposed non-human primate research establishment is in the national interest. The information that would facilitate this is not in the public domain and Cambridge University chose not to call any technical witness involved directly in the research projects or anyone benefiting directly from them.
I accept readily that there is no place in the planning remit for commenting on the moral or ethical aspects of animal research, even that with non-human primate involvement. Notwithstanding, if the national interest 'card' is to be prayed in aid as a very special circumstance, then I believe there is a direct obligation on the University to demonstrate this in some objective way. One way would be to tender a witness who would submit technical scientific support for the project. This might inform in some detail what has been achieved, what is currently under way and how this has been successful in advancing knowledge and, in particular, the understanding and treatment of neurological conditions. This witness would then be available to answer questions. In the absence of this, CU have to rely on the statements of support from the DTI and other members of the Government, and I address these later."
The University's case in this regard is, as I have said, set out in the Report and it would be convenient to refer to the material parts of it. I begin with paragraph 7.26, which reads:
"The use itself, while not involving a change of use in planning terms, can and should be accepted as unquestionably of the highest public importance. In this context, no apology is made for referring to and relying upon the considered views brought together in the Minister's letter dated the 22 November 2002 in response to the Inspector. This letter was written specifically to set out the Government's position to assist the inquiry and so it should be treated. It is quite wrong to say that it is a Government endorsed assertion."
I shall of course have to refer to that letter in some detail in due course.
Returning to the case for the University as reported by the Inspector, this is said at paragraph 7.28:
"The Government's position is that the proposed centre, the subject of this appeal, is for that reason nationally important. It would improve research facilities through the establishment of a centre of research excellence after what the Government acknowledges at the national level has been 'years of neglect'. It is Government policy that development of such a centre of research excellence would bring with it public benefits in the national interest for 'academia, health and the economy'."
Then paragraph 7.31:
"The second matter is with regard to Cambridge particularly. Government policy states that to achieve these national objectives the research centre should be sited at Cambridge, providing as it does 'the unique expertise of individual researchers and Cambridge's leading position in the UK as a centre of research excellence and high technology cluster.' The interrelationship between the various limbs of research to the clinical, pathological and other sciences and the consequent benefit, incentive and stimulus for key scientists and researchers through association and intercourse with others in the same research and scientific fields is important."
Finally, I go to 7.37-7.39:
"Notwithstanding, written evidence on the topic has been provided and it should not be forgotten that this inquiry has not had available to it the broad based and consistent views of a medico-scientific world. This is overwhelmingly in support of the value and importance of animal research for this purpose. The objectors acknowledge that the views expressed on their behalf are very much in the minority, albeit no doubt, sincerely and strongly felt, and that generally the question is not even regarded as a subject for debate.
With one possible exception, the inquiry has not had the direct or oral evidence of any scientist in support of his/her views in opposition to that expressed as a matter of Government policy and otherwise. The principal witness to speak directly on these matters Dr Ray Greek is not a neuro-scientist. The exception, Dr Claude Reiss, spoke as the co-president of the former Doctors in Britain against animal experiments, now the DLRM, and his point was principally the absence of evidence produced to support the need, rather than any evidence to refute it.
With respect, it will be appreciated how ill-equipped this inquiry would be as a medium for determining matters of broad national approach industrial [sic] to questions of such importance to our future health and wellbeing as the use of animal research. In contrast, the Government has available to it a wide range of professional and informed advice in the light of which it is well able and has been democratically elected to determine matters of national importance of this kind. Moreover, as pointed out in the Minister's letter, this inquiry has the conclusions of the Report by the House of Lord's Select Committee on Animals in Scientific Procedures. The Committee sat for over a year and took evidence from over 100 witnesses, including Dr Ray Greek and Dr Gill Langley. It concluded unequivocally that there is a continuing need for animal experimentation, both for applied research and in research aimed purely at extending knowledge."
The Coalition made submissions in relation to national importance and the need to establish very special circumstances. In paragraph 9.6 the Inspector reports their submissions thus:
"CU asserts that the proposed development is of such a national importance as to constitute very special circumstances so as to rebut the presumption against development in the Green Belt and justify the proposal. To support this assertion the University places very considerable emphasis on various pronouncements of support for the proposed centre and in particular letters from Lord Sainsbury, Under Secretary of State for Science and Innovation. While it is accepted that such pronouncements are capable of being material considerations for the First SoS through his Inspector, they are no more than that and cannot be considered to be Government policy such as removing all need to demonstrate national importance."
In paragraph 9.10, this is said:
"In the normal course of events a developer seeking to rely upon national importance as the necessary very special circumstance to outweigh harm to the Green Belt would demonstrate through evidence that the proposal was, firstly, important to all and then it was important in the interests of the United Kingdom. Cambridge University has done neither."
Returning to the Inspector's conclusions at 14.18, he says this:
"With regard to the scientific/medical input, or lack of it, the appeal system has long adhered to the Frank's principles of fairness, openness and impartiality. It is not acceptable, therefore, to argue, as CU do, that the Inspector and the SoS lack the technical competence to follow the medical evidence that might be adduced and, thus, rely on the written statements and submissions of one party, however eminent."
I am bound to say that it strikes me that the Inspector there was taking some umbrage which was not justified. The submissions were not that he was incapable of understanding or dealing with the medical evidence or the detailed technical evidence. The point being made was that it was not appropriate for this sort of inquiry to deal with those issues. However, as the Inspector went on to point out, complicated and detailed evidence was often given before inspectors. In 14.20 he says:
"Similarly, the arguments about the security risk for those giving evidence are not compelling."
This was in connection with an argument put forward that witnesses could not be expected to expose themselves to the risks involved of being targeted by some of these so-called animal rights activists. The Inspector says:
"As was pointed out, there was no need for those actually involved in undertaking research on non-human primates to appear. If the research on non-human primates at CU, or any animal research at any institution, has led to successful clinical trials on humans or the establishment of other medical/clinical procedures etc, then it should have been possible to 'parade' the recipients of the research information before the inquiry. As the Coalition proposed, they could have supported the 'national interests/need' argument and, not being directly involved in animal research themselves, would not have been placing themselves at risk."
That, with respect to the Inspector, is a somewhat naive view of those who might be at risk of action by these particular people.
Then at paragraph 14.23 this is said:
"All this discussion about evidence and questioning does not mean that written representation should count for nought. Clearly they are material and have to be taken into account. However, most if not all of the scientific/medical evidence advanced by CU is challenged by objectors, with equal or more extensive written representation and some oral evidence. Under these circumstances, I would be heavily criticised if I afforded the University written evidence greater weight than that of the objectors."
Again, with respect to the Inspector, he would not be criticised at all if the University's evidence was more impressive and therefore was entitled to have greater weight attached to it than that of the objectors. I am not saying that that was necessarily the position; but that general observation is clearly not correct.
He continues in paragraph 14.24:
"Clearly, it is extremely difficult to identify the future benefits of pure or 'blue skies' research. It seems to me that there could always be something of scientific usefulness that could be established by such experiments. From the opposing standpoint, and no doubt equally valid, there can be no guarantees. Having said this, I appreciate that it might be difficult to enter into an open debate in a competitive world with material that might be sensitive.
On the basis of the technical input, therefore, I could not conclude that need in the national interest is demonstrated insofar as this pertains to the scientific/medical research and procedures undertaken by the University."
Having considered the ministerial letters and all the other relevant factors, he then in paragraph 14.36 says this:
"Looking at national interest in planning terms, if one were to accept the DTI and MRC [the Medical Research Council] arguments as compelling then it would make it much more difficult for planning authorities to resist future proposals, where no objective or specific evidence is supplied. It is almost as if these submissions consider anything that would contribute positively to the national economy should be treated as nationally important. I am certain this is not the intention of national or local planning policy guidance. Consequently, I am sure, therefore, that the information contained in the DTI and MRC letters have not, of themselves, prompted the Government, collectively, to conclude on this project's national importance.
Nor have I found the House of Lords Report into 'Animal in Scientific Procedures' crucial. On many counts the Report raises similar concerns to those aired at this inquiry. However, as I understand it, their Lordships were commenting on 'animal research' as a generic interest, not specifically in respect of research on non-human primates. In any event, it is clear that considerable evidence and submission was available to them in assisting them to their recommendation. Not least, I assume they were able to 'test' the submissions of those directly involved. These facilities were not made available to the planning inquiry. As mentioned above, from the planning inquiry viewpoint this must be seen to be fair, open and impartial. Without this, the fears of some objectors that the outcome is a foregone conclusion is granted credibility."
That is, I think, all I need read from the Inspector's report.
I turn now to the decision of the First Secretary of State. He deals with the need for the proposal in paragraphs 12-27 of his letter. He refers to the Inspector's approach, and then at the end of paragraph 16 he says that he does not agree with the Inspector that there was an obligation on the part of the appellants to prove objectively, in the manner set out by the Inspector, the value of the research that would be undertaken on the site. He then refers to Lord Sainsbury's letters, to which I will refer in a moment, and then I should read paragraphs 22 to 26:
"In view of the representations from Lord Sainsbury (as outlined above), the Secretary of State considers that the proposed development would be in line with Government policy and would fulfil an identified need for this type of research. In the Secretary of State's view, the proposed centre for Behavioural and Neuroscience will be a vital contribution to the Government's aim to promote an internationally competitive knowledge economy in the UK which will generate both wealth and deliver health and other quality of life benefits. This is a moving area of research and the proposed development would create a centre of research close to a concentration of scientists capable of understanding and advancing scientific knowledge in this area. It is the Secretary of State's view that, if the research work is not undertaken promptly in this centre there is a risk that leading scientists would be lost from Cambridge and the UK and the opportunity to strengthen Cambridge's and the UK's role in leading edge research could be lost. The Secretary of State notes that the appellants have indicated that failure to secure planning permission on this site would in all probability be the end of meaningful biomedical research on non-human primates in Cambridge. He considers that there is force in this assessment, and has weighed in the balance the benefits of the research being carried out at this location by these appellants which will facilitate the creation of a centre of excellence in this area of science.
It is the Secretary of State's view that a major issue he needs to consider is how much weight should be attached to these wider policy benefits which have the strong support of Government as being nationally important. The Secretary of State disagrees with the approach to the analysis of need and national interest taken by the Inspector in IR 14.17-14.29. In the light of the evidence before him, the Secretary of State attaches significant weight to these wider benefits and Government policy to promote a Centre for Behavioural Neuroscience in the UK and specifically in the Cambridge area.
The Secretary of State has considered the Inspector's comments on the letters from the Parliamentary Under Secretary of State for Science and Innovation, Lord Sainsbury and the MRC and the Inspector's conclusion that if one were to accept the arguments put forward as compelling it would make it much more difficult for planning authorities to resist future proposals where no objective or specific evidence is supplied. The Secretary of State disagrees. There is clear evidence that the proposed development is regarded by Government as being of national importance and that it is fully in line with Government policy. It is the Secretary of State's view that the letters from the Parliament Under Secretary of State for Science and Innovation are specific evidence to that effect. Moreover, there is always likely to be an inherent difficulty in relation to any area of academic scientific research in establishing exactly what commercial benefits, improved employment prospects etc may result from it. But that does not mean that the benefits which may result are not substantial. In the current context, the Government assesses that the benefits are likely to be substantial, and the Secretary of State gives considerable weight to that assessment.
The Secretary of State does not agree with the Inspector that the letters from the Parliamentary Under Secretary of State for Science, DTI, and MRC have not of themselves prompted the Government collectively to include on this project's national importance. It is the Secretary of State's views that as a clear statement of policy from a Government Minister with responsibility in the area and acting in his ministerial capacity, the letters from Lord Sainsbury, which support the case made by the Chief Scientific Adviser, reflect the Government's collective view.
The Secretary of State notes the Inspector's conclusion that there are several arguments that could be seen in favour of this project, but that taking the points individually or cumulatively he does not see them as so compelling as to justify this particular project as one in the national interest. For the reasons outlined above, the Secretary of State considers that the development is clearly in line with Government policy and is strongly in the national interest and it is to these considerations he attaches significant weight."
It will be apparent that the "Lord Sainsbury letters" are crucial. The first was a letter sent to the Vice-Chancellor of the University in April 2001. So far as material it states as follows:
"I confirm that the DTI would regard this proposal as nationally important. The UK has world-class neuroscience, and this Centre would consolidate the UK's position as a global leader. It brings together outstanding scientists to work on significant research problems in an inter-disciplinary environment using state-of-the-art facilities and enhanced animal accommodation at an institution where neuroscience has significant strength and potential. Centres of this kind are key to translating Government policies into reality.
The Government's policy is to promote an internationally competitive, knowledge economy in the UK, capable of generating new wealth, but also delivering health and other quality of life benefits. Science and technology have a leading role to play. We are determined to make the UK a centre of excellence for world science. This in turn involves nurturing centres of excellence within the UK so that they can enjoy the modern facilities required for leading-edge research, draw together the multi-disciplinary teams able to use them to address challenging problems, and interact fruitfully with potential users of the research in academia, industry, and the wider economy.
We have made these policies clear in, for example, relevant White Papers (Excellence and Opportunity: a science and innovation policy for the 21st century and Opportunity for All in a World of Change: a White Paper on Enterprise, Skills, Innovation), in substantial extra public funding for science and its exploitation, and in reports and guidelines on the creation and expansion of clusters and other links between businesses, and between business and university research."
There was a degree of jargon in what I have read. I think most of it is understandable and fairly clear. But "clusters", as I understand it, refer to the bringing together of the various necessary centres to deal with matters so that they are close together. An example obviously is that this sort of centre needs to be at or close to a university which has the scientists who are able to work in it.
He then goes on to point out that the Joint Infrastructure Fund has granted awards for the proposal and that the five international referees who assessed the application for funding rated the proposed centre very highly and quotes examples of their views. He concludes:
"More generally, the proposed Centre should strengthen Cambridge's role in leading-edge research, and the development of the area as one of the main 'clusters' in the UK's knowledge economy. The White Paper 'Excellence and Opportunity' (paragraph 3.26 and following), Planning Policy Guidelines 11 and 12, and the recent DTI report 'Business Clusters in the UK - a first assessment' provide further information on the Government's policies on cluster development and its importance to UK competitiveness, and in particular Cambridge's contribution.
As you know, the Government strongly supports the lawful use of animals in research, regulated by the Animals (Scientific Procedures) Act and the Home Office, and we must work to make accommodation for laboratory animals as world-class as the science it is intended to promote. The proposal consolidates gains in both these areas, and it is of national importance for that reason also.
Finally, I fully recognise that the location of the Centre is a matter for the university and the planning authorities. Planning applications are properly for the planning authorities, and they need to take a range of considerations into account in reaching their decisions. I am content for you to release this letter to them, and for them to make it available to all parties with an interest in any planning application for the proposed Centre."
The second letter, dated 22 November 2002, was written to the Inspector. So far as material, it states:
"I am writing to clarify the Government's position on a number of issues that have arisen thus far in the appeal.
Firstly, I would like to emphasise that my letter of April 2001 to the Vice-Chancellor, Sir Alec Bruces, and the letters from the Government's Chief Scientific Adviser, Professor David King, of 25 September 2001 to Councillor Healey and 16 January 2002 to Mr David Hussell represent Government policy, and are not just views expressed by myself, Professor King, and the DTI. Government policy for research has been set out in the documents referred to in my earlier letter, and more recently in Investing in Innovation, A Strategy for Science, Engineering and Technology, July 2002."
The letters from Professor King are supportive of the proposal, but are concerned largely with the Government's commitment to combat the threat posed by the unlawful activities of a minority who oppose any sort of experimentation on animals. Accordingly, it is not necessary for me to read them in the context of this claim.
Returning to the letter of 22 November it continues:
"Against this policy background, the Government believes that the proposed Centre for Behavioural Neuroscience continues to be nationally important, amongst other things:
• to improve national research infrastructure after years of neglect;
• to develop centres of research excellence, with benefits for academia, health and the economy;
• to improve accommodation for animals used in research;
• to ensure legitimate research involving animals is able to proceed despite intimidation.
The earlier correspondence and other evidence that you will have seen, for example from the Medical Research Council, have amplified these points. They also make clear why the research needs to be sited in Cambridge building on the unique expertise of individual researchers, and Cambridge's leading position in the UK as a centre of research excellence and high-technology cluster.
I must also make clear that, though the Government regards the proposal as nationally important, it cannot comment at this stage on the specific site. We fully recognise that planning procedures must properly take their course, and in this case I understand that the final determination will need to be made at a later date by the Deputy Prime Minister in the light of your report.
The Government is aware of the argument that scientific procedures involving the use of animals, including primates, are unnecessary or bad science. It does not accept this view. Such procedures need to pass the tests set down in legislation and subsequent regulation by the Home Office. These are particularly stringent in the case of primates. If viable alternatives to the use of animals, or means of reducing or refining the procedures are available, then they must be employed. In addition, publicly funded science in generally subject to rigorous peer review by the national or international scientific community, from the viewpoint of scientific credibility and value for money.
The Government accepts prevailing scientific opinion, again reflected in the MRC submission to you but also, among many others, by the UK Life Science Committee, that animals will continue to be needed in research, subject to the above tests and regulation. A recent House of Lords Select Committee investigated the efficacy of animals experiments and concluded in its report Animals in Scientific Procedures (16 July 2002) that there is at present a continued need for such experiments both in applied research and in research aimed purely at extending knowledge, though it also commended greater efforts to develop alternatives. The Government concurs."
The reference to the House of Lords Report leads me to refer briefly to the Government's response to it, and in particular to the Government's comments on its relevant conclusions. One of its conclusions was that there was at present a continued need for animal experiments both in applied research and research aimed purely at extending knowledge. The Government's comments were these:
"This is also the Government's view. Fundamental and applied scientific research is essential for progress and, in the field of healthcare, research using animals has contributed to almost every medical advance in the last century. Although the situation may change in the future, the development of all new drugs, and a number of medical and veterinary technologies which help to reduce suffering and prevent large-scale infections among humans and animals continues to depend on this carefully regulated and responsible use of animals for research, drug development and testing."
Another relevant conclusion of the Committee was that there was a scope for the scientific community to give a greater priority to the development of non-animal methods and more consideration could be given to the pursuit of what was described as the 3Rs - Reduction, Refinement and Replacement. The Government's response so far as material was as follows:
"The Government welcomes the Select Committee's recognition of the progress that has been made since 1987, both with regard to the number of animals used - which has fallen insignificantly - and in particular in establishing a culture of care in designated establishments. During this period great progress has been made in the introduction of non-animal methods and the refinement of procedures that still require the use of animals. However, the Government is not complacent and remains committed to the fullest possible application of the 3Rs. We see progress with the 3Rs to be the responsibility of the entire biomedical research community, and believe that the development of 3Rs strategies should be embedded in mainstream biomedical research rather than separated from it."
The final relevant conclusion was that the Government recognised that progress of the 3Rs, and in particular replacement, was a long-term commitment with no quick fixes.
That Government policy should be taken into account is obvious. Further, it is not, generally speaking, for a local inquiry to go into questions as to whether the Government policy was correct. The leading authority which establishes that proposition is Bushell v Secretary of State for the Environment [1981] AC 75, and it is necessary to cite some parts of that authority.
The issue in the case was whether cross-examination should have been permitted on a document known as the "Red Book", which was produced by the Government and upon which it had based its assessment of the need for motorways. The case itself concerned the proposals to build what is now the M40 and the M42. The Red Book set out the methodology and the assumptions and predictions upon which the policy in relation to the construction of motorways was based. The leading speech of the majority of the House of Lords was given by Lord Diplock. At page 97G of the Report he says this:
"The circumstances in which the question of cross-examination arose in the instant case were the following. Before the inquiry opened each objector had received a document containing a statement of the minister's reasons for proposing the draft scheme. It was itself a long and detailed document, and was accompanied by an even longer and more detailed one called 'Strategic Studies Information,' which gave an account of various traffic studies that had been undertaken between 1964 and 1973 in the area to be served by the M42 Bromsgrove and M41 Warwick, the methodology used for those studies and the conclusions reached. The second paragraph of the minister's statement of reasons said: 'The government's policy to build these new motorways' (sc. for which the two schemes provided) 'will not be open to debate at the forthcoming inquiries[sic]: the Secretary of State is answerable to Parliament for this policy.'
'Policy' as descriptive of departmental decisions to pursue a particular course of conduct is a protean word and much confusion in the instant case has, in my view, been caused by a failure to define the sense in which it can properly be used to describe a topic which is unsuitable to be the subject of an investigation as to its merits at an inquiry at which only persons with local interests affected by the scheme are entitled to be represented. A decision to construct a nationwide network of motorways is clearly one of government policy in the widest sense of the term. Any proposal to alter it is appropriate to be the subject of debate in Parliament, not of separate investigations in each of scores of local inquiries before individual inspectors up and down the country upon whatever material happens to be presented to them at the particular inquiry over which they preside. So much the respondents readily concede."
It is said that this inquiry was somewhat different because it was not only persons with local interests affected who were represented; the Coalition was afforded the right to be represented in accordance with Rule 6 of the Planning Inquiry Procedure Rules and it had wider interests than the merely local ones. It did contain supporters who were local, and it also put forward objections which themselves were local in the sense that they were objections to this development at this site. Nonetheless, this was a local inquiry concerned with whether this development should take place at 307 Huntingdon Road.
Returning to Lord Diplock's speech, he continued:
"At the other extreme the selection of the exact line to be followed through a particular locality by a motorway designed to carry traffic between the destinations that it is intended to serve would not be described as involving government policy in the ordinary sense of that term. It affects particular local interests only and normally does not affect the interests of any wider section of the public, unless a suggested variation of the line would involve exorbitant expenditure of money raised by taxation. It is an appropriate subject for full investigation at a local inquiry and is one on which the inspector by whom the investigation is to be conducted can form a judgment on which to base a recommendation which deserves to carry weight with the minister in reaching a final decision as to the line the motorway should follow.
Between the black and white of these two extremes, however, there is what my noble and learned friend, Lord Lane, in the course of the hearing described as a 'grey area'. Because of the time that must elapse between the preparation of any scheme and the completion of the stretch of motorway that it authorises, the department, in deciding in what order new stretches of the national network ought to be constructed, has adopted a uniform practice throughout the country of making a major factor in its decision the likelihood that there will be a traffic need for that particular stretch of motorway in 15 years from the date when the scheme was prepared. This is known as the 'design year' of the scheme. Priorities as between one stretch of motorway and another have got to be determined somehow. Semasiologists [for those who do not readily understand that word it means those who are concerned with the meanings of words] may argue whether the adoption by the department of a uniform practice for doing this is most appropriately described as government policy or as something else. But the propriety of adopting it is clearly a matter fit to be debated in a wider forum and with the assistance of a wider range of relevant material than any investigation at an individual local inquiry is likely to provide; and in that sense at least, which is the relevant sense for present purposes, its adoption forms part of government policy."
It is that last passage which is of considerable importance in connection with this case.
At page 99H, having dealt with the assumptions in the Red Book which were relied on to predict the need for the stretches of the motorways with which the case was concerned Lord Diplock said this:
"The decisions to make these two assumptions for the purpose of calculating and preparing what traffic needs will be in all localities throughout the country in which it is proposed to construct future stretches of the national network of motorway might not, in a general context, be most naturally described as being government policy; but if a decision to determine priorities in the construction of future stretches of the national network of motorways by reference to their respective traffic needs in a design year 15 years ahead can properly be described as government policy, as I think it can, the definition of 'traffic needs' to be used for the purposes of applying the policy, viz. traffic needs as assessed by methods described in the Red Book and the departmental publication on the capacity of rural roads, may well be regarded as an essential element in the policy. But whether the uniform adoption of particular methods of assessment is described as policy or methodology, the merits of the methods adopted are, in my view, clearly not appropriate for investigation at individual local inquiries by an inspector whose consideration of the matter is necessarily limited by the material which happens to be presented to him at the particular inquiry which he is holding. It would be a rash inspector who based on that kind of material a positive recommendation to the minister that the method of predicting traffic throughout the country should be changed and it would be an unwise minister who acted in reliance on it."
Finally at page 103D he said this:
"My Lords, what the respondents really wanted to do in seeking the reopening of the local inquiry was to hold up authorisation of the construction of M42 Bromsgrove and M40 Warwick until the revised methods adopted by the department for estimating the comparative traffic needs for stretches of the national network of motorways which have not yet been constructed had been the subject of investigation at the reopened inquiry. For reasons that I have already elaborated, a local inquiry does not provide a suitable forum in which to debate what is in the relevant sense a matter of government policy. So the minister was in my view fully justified in refusing to reopen the local inquiry and in refusing to defer his decision whether or not to make the schemes until after this had been done and he had received a further report from the inspector."
Mr King submits that Lord Sainsbury's observations in the letters to which I have referred do not amount to policy but are concerned with the application of policy. As Lord Diplock in the passages I have cited says, it is not always possible to draw a clear distinction between policy and application. The policy is meaningless unless it is to be applied and the general form in which it can be implemented is, in my view, to be itself properly regarded as policy. Mr King submits that support for a proposal by a government department cannot be said to be the same as Government policy, otherwise there would be little point in having inquiries if a government department was in favour of a particular proposal. He sought to draw an analogy with, for example, mineral extraction. He pointed out that frequently in such applications there was support from the DTI because it was a valuable mineral, because it was important for the economy of the country that it should be exploited and so on. Much, of course, would depend upon the particular circumstances of an individual case. Thus, for example, if there was only one possible site from which a very special mineral which needed to be exploited could be extracted, that would obviously be an important consideration. Indeed, it might be said to amount even to Government policy, given the necessary factual matrix. But I have no doubt it is properly to be regarded as policy to promote, for the benefit of the United Kingdom, the existence of centres of excellence such as these.
It does not seem to me that the analogy sought to be drawn by Mr King in any way indicates that that approach is wrong. He painted a picture of damage to the planning process if the proposition was accepted. In my judgment it does not and cannot cause any such damage. Accordingly, I have no doubt that, as Lord Sainsbury indicate and as the First Secretary of State decided, it was properly to be regarded as Government policy that centres of excellence (as they are called) such as put forward in this proposal, should be established. Indeed, to exploit the scientific excellence to maintain this country as a leading exponent of such research is obviously of considerable importance and the absence of such centres, which then would no doubt be set up in other countries, might well be damaging not only to the economy of the country but also to the retention of high quality scientists at our universities.
The question then is whether it should be at or near Cambridge as a matter of policy. This seems to me to be more difficult. That such a centre should be at or near a University from which the scientists who work there can be drawn does, in my view, constitute a matter of policy. But Cambridge is not the only university in this country and it is equally not the only university which has a well-established scientific and technological side. There are positive reasons in this case, as Lord Sainsbury's letters indicate, to draw on the existing expertise. The need for the leading edge of research to be enhanced equally points strongly to Cambridge. Once the need for this sort of establishment is accepted, as I have said it should have been, Government policy supported by the MRC in what may be described as assertions but come from eminent sources do point to Cambridge. It would, in my judgment, have been perverse to say that Cambridge was not the correct place for the establishment of such a centre. It was made clear whether this proposal should succeed must be decided in planning terms and there were planning objections raised to it. Those objections were not accepted as outweighing the points in favour, the need that was identified, and no challenge is brought to that side of the Secretary of State's decision. I say "no challenge", though I fully understand that the claimants are unhappy that the Secretary of State has decided to overturn the Inspector's views in that regard. But they have been properly advised that an appeal to this court can only be brought if errors of law are established.
Accordingly, in my judgment, the Inspector's approach was wrong and the Secretary of State was correct to deal with the matter in the way that he did. There is no error of law in his decision in that regard. It does not seem to me that it can conceivably properly be said that the decision was foregone. The First Secretary of State would have acted wrongly if he had not applied Government policy, and the suggestion that he closed his mind to any objections because of the Lord Sainsbury letters is not something which, in my judgment, can conceivably be said to have been established.
The other two grounds I can deal with more briefly. So far as the suggested condition is concerned, no one had asked for any such condition. As a general proposition, it is not for an inspector or for the Secretary of State to identify conditions which neither the local planning authority nor the appellants consider to be appropriate. Authority for that proposition is to be found in the decision of the Court of Appeal in Top Deck Holdings Ltd v Secretary of State for the Environment [1991] JPL 961. The details of the condition that it was suggested the Inspector should have identified in that case are perhaps of no real importance. The principle is what matters. Lord Justice Mann (at page 964) stated the question thus:
"What was the Inspector to do in regard to a condition which was neither requested nor, more significantly, offered? Upon that question the court was referred helpfully to the decision of Forbes J in Marie Finlay v Secretary of State for the Environment and London Borough of Islington [1983] JPL 802."
That was a case which involved a suggestion that the Secretary of State should attach a condition the possibility of which had never been canvassed at the inquiry.
Forbes J said if the Secretary of State were to consider attaching such a condition, he would be accused of doing something without giving the appellant the chance of making representations about it. He said:
"Clearly, if the Secretary of State were minded to adopt any kind of policy of this character, he would have to re-open the inquiry in those circumstances in order that the appellant should have a chance of dealing with the imposition of a condition which had never been canvassed at the inquiry.
If a party to an appeal wanted the appeal to be considered on the basis that some condition could cure the planning objection put forward, then it was incumbent on the appellant to deal with that condition at the inquiry. Unless such a condition has been canvassed the Secretary of State was not at fault in not imposing such a condition."
Lord Justice Mann went on that he agreed with the view expressed by Forbes J. He continued:
"Such an approach had to work sensibly in practice. An Inspector should not have imposed upon him an obligation to cast about for conditions not suggested before him."
Mr King accepts that that is the approach which in general has to be applied, but submits that if a condition is obviously required so that it would be perverse not to impose it then the Secretary of State has an obligation to impose it. Effectively, he submits that it was perverse for the Secretary of State not to impose such a condition. It is important to remember that the development was not only for non-human primates; nor was it limited to animal research only. It would bring together under one roof the facilities to undertake research on all types of animals, including in particular non-human primates; but the research was not, as I say, limited to animals and indeed it would have been consistent with the policy which the Government has indicated is the correct policy described as the 3Rs that the research should, if possible, reduce the need to rely on experiments on animals. The request was for a B1(b) use. That is a general research use. The submission put forward by Mr King was that such a condition, limited to animal research, would only be needed if there was a change of use away from animals. Because the research on, in particular, non-human primates, constituted the need which produced the very exceptional circumstances to justify this development in the Green Belt, anything less than such research should be prevented. I have described it earlier as somewhat paradoxical, having regard to the nature of the claimants, that a request for a condition limiting the use to animal research should be imposed. But the paradox is explained by the contention that there is, in addition, an objection on Green Belt grounds, and therefore there should be no development of this land unless it can properly be said to fall within such development as is justified by very exceptional circumstances. The submission presupposes that the University will either wish to develop this for other research activities, having obtained the permission, or might want to sell off the land to some other body, for example a private company, which might want to use it for more general development. I am not sure that either is an entirely realistic suggestion.
It is true that an interested party is not bound to put forward conditions. But if this sort of condition was so obviously required, it is a little surprising that no-one apparently thought that it was one which ought to be put forward. It is possible, as Mr King pointed out, if such a condition were imposed to apply to vary it under Section 73 of the Town and Country Planning Act. However it strikes me that there is some difficulty in addition in drafting with sufficient precision the condition that would be considered appropriate. It is perhaps not without some significance that initially Mr King was submitting that the condition should limit to non-human primates only, and only subsequently accepted the possibility of the slightly less restrictive condition. Indeed, the former would have been a ridiculous condition to impose because the site in question already had permission as an animal research centre. In any event, there was no question of limiting the future development to non-human primates only. I am wholly satisfied that this could not conceivably be regarded as a condition which was obviously needed and that argument does not prevail.
Finally, in relation to the statements that were not provided to the First Secretary of State, Mr Sales submitted, no doubt correctly, that the First Secretary of State did not need more than the Inspector's report. One of the purposes of obtaining a report from the Inspector was to enable the Secretary of State to rely upon it and not to have to go through all the supporting material. But frequently, and understandably and entirely correctly, the Secretary of State does require the material which was put before the Inspector to be submitted to him. If he calls for statements he should have all of them; and there was undoubtedly an error in that he did not have the two statements from the Coalition. But there is no conceivable prejudice that they have suffered. They put forward, having been represented by counsel, a full summary which was then set out in the Inspector's report. In any event it would be dangerous to rely on statements which cross-examination may have shown to be in material respects unreliable. It is submitted that the Secretary of State should have appreciated that he did not have them, and that that reinforces the impression he never was concerned to address them since he was determined to grant planning permission. I hope I will be forgiven if I say that submission, in my judgment, truly scrapes the barrel. It is not a submission which is supported by any of the material which is before me.
For the reasons that I have given this claim must be dismissed.
MISS PROOPS: My Lord, I am here on behalf of the defendant in this matter. We do seek our costs. Clearly the decision still stands and the claimant has been unsuccessful in its entirety.
MR WALD: My Lord, yes. I resist that application for costs. I say that in these circumstances no order is the appropriate order, or alternatively a partial award is appropriate. I say that on the basis of four grounds. First, it is accepted - and indeed your Lordship refers to it in this judgment - that the two proofs were in error not sent to the Secretary of State. We do have a witness statement from Joan Bailey. At paragraph 5 she says "For completeness...", and then explains the circumstances that surrounded that. In my submission that rather understates the error and no apology has come as a result ---
MR JUSTICE COLLINS: That is all very well, but Mr King was unable to suggest any prejudice that could have resulted from that failure. Because your very full and accurate summary, both of Dr Greek's evidence and the planning evidence, was before the Inspector, so nothing was lost. I agree there was an error and it should not have occurred, but there is no point in relying on errors such as that if the analysis is they could not conceivably have affected the result.
MR WALD: My Lord with respect, the importance of it is not in relation to establishing actual unfairness, but it was used, and clearly now the judgment that your Lordship has given says that the pre-determination argument was rejected, but it was used also as evidence of predetermination. If some proofs are sent and others not ---
MR JUSTICE COLLINS: That was about as bad an argument as I have ever heard. That is not going to help you, I am afraid.
MR WALD: Excuse me?
MR JUSTICE COLLINS: I said that argument is not going to help you, I am afraid.
MR WALD: The second ground upon which the application for costs is resisted is that as a result of the pre-inquiry meeting, (inaudible) and agreed issues that were established, all parties, including the Coalition, proceeded on the basis that need was going to be an issue at the inquiry.
MR JUSTICE COLLINS: It was indeed an issue. The question was how that need should be established, and I have held, rightly or wrongly, that the Secretary of State was correct in deciding the need to be established in the way that he said. The Inspector was wrong. But the need had to be established.
MR WALD: My Lord, unlike in Bushell where no cross-examination was allowed on that issue, that issue was allowed to be ventilated at the inquiry.
MR JUSTICE COLLINS: Indeed, the Inspector wrongly allowed it. That does not create any basis, does it, or can it, for resisting costs when the appeal is brought on the basis that the Secretary of State was wrong, in his view, if the decision is that the Secretary of State was right?
MR WALD: Well my Lord another distinction from Bushell, as your Lordship correctly pointed out, both are local inquiries. The very special circumstances prayed in aid by Cambridge University invoke a national element (inaudible). And the issues that were, following your Lordship's judgment, wrongly ventilated at the inquiry - or to some degree wrongly ventilated at the enquiry - were national in their quality. They were issues of public interest and of national importance. That, my Lord, is my third ground upon which I resist costs - that these were important national issues at this meeting. I do not know whether your Lordship requires me to refer you to it; there is a reference to it in the White Book. The authority of Smeaton v The Secretary of State for Health [2002], those features can be grounds upon which to resist the usual course where the loser pays in these proceedings.
MR JUSTICE COLLINS: It depends on the circumstances, does it not?
MR WALD: Yes. But, my Lord, I will say that in these circumstances, clearly as your Lordship pointed out in today's judgment, it is an issue that is now for some reason particularly hotly debated.
MR JUSTICE COLLINS: Yes, the Government has always made plain that it is its view that animal research is necessary and in the public interest and national interest. That is a view with which your clients understandably profoundly disagree, and I know there are very strong feelings about it and very genuine feelings about it. There is, I know, a scientific argument as well. But the Government has said for many years that it is in favour of animal research. Indeed, the response to the Select Committee report makes that as plain as it could be, does it not? There is no issue about that.
MR WALD: There is no issue about that. The only issue that arises and is relevant in this response to this application for costs is that the members of the Coalition, as your Lordship has pointed out, plainly operated completely within the law. There is a legitimate debate to be had. Following your Lordship's judgment on Bushell that debate ought not to have been had at the inquiry. It was not then known, and those are issues of considerable national importance.
MR JUSTICE COLLINS: Yes, but they had been decided, were they not? They were not issues up for reconsideration. That is the point. At least not at the inquiry. As I have said I know that there are very strong feelings about this issue and people feel it is repugnant that for example non-human primates should undergo the sorts of experiments that are considered necessary. I fully understand that. But it is, I am afraid, not a relevant consideration when I have to decide whether as a matter of law the Secretary of State was adopting the right approach. There is an argument, as I say ---
MR WALD: Let me just respond to that. Your Lordship says that the issues were decided. The argument centred at the inquiry on non-human primate research - not animal experimentation generally as the Government papers in the House of Lords Select Committee report does.
MR JUSTICE COLLINS: I know, but it was part and parcel of animal experimentation. I agree. It is a specific aspect of such experimentation. But I mean Dr Greek's evidence went particularly to non-human primates, but it also was a little more general than that.
MR WALD: My Lord, it started with the general and moved to the ---
MR JUSTICE COLLINS: Exactly.
MR WALD: The response to the application for costs was made on the basis that either no order or a partial order should be appropriate. The fourth ground relates to a particular procedural matter, although in this initial submission of grounds in this matter they were amended in order to narrow issues and reduce the length of the hearing that we have had this week. That was initially resisted - the amended claim - by the Secretary of State so that an application had to be made in respect of that. That resistance was then withdrawn without explanation so that some unnecessary costs were incurred in that way by the claimant.
MR JUSTICE COLLINS: Was there ever an application made, or was it simply...
MR WALD: There was then a withdrawal in ---
MR JUSTICE COLLINS: Do you mean there was never any judicial decision on the application?
MR WALD: It did not get to that stage, no. My Lord, I refer to that. The alternative submission is that only a partial award be made. That is an example of unnecessary costs incurred by the claimant, but if your Lordship is not with me on the primary submissions that no award be made, perhaps half the costs would be an appropriate result in the circumstances of this particular case.
MR JUSTICE COLLINS: Thank you. What about this application that had to be made and you withdrew objection?
MISS PROOPS: My Lord, I have not had the benefit of being previously involved in this matter. I will just take instructions. (After a pause) My Lord, I am instructed that initially the view was taken that if the claimants wanted to amend their claim they should do that in the proper way by making the application to the court. But then subsequently the view was taken that in fact a degree of formality was not necessary, and it is that objection against the approach which was being taken by the claimants was withdrawn by the defendants. What is of course significant here is it was withdrawn without the need for any judicial pronouncements ---
MR JUSTICE COLLINS: But an application had been made. I do not know how much it cost, but it cost something to lodge an application with the court.
MISS PROOPS: My Lord, it was obviously a matter for the claimants whether they took the view as to whether it was necessary to lodge the application.
MR JUSTICE COLLINS: If you said that it was initially, then it is not surprising that they did. I think there is some force in that (inaudible). On the face of it I think they should have from you the costs of making that application which will be set off against the costs that I have awarded you overall.
MISS PROOPS: There is nothing more I can say.
MR JUSTICE COLLINS: As I say, I am sure it is not going to be a very large amount, but it will be something. They had to prepare the application; they had to lodge it. Those are the costs that I am concerned with. Subject to that small proviso, you can have your costs of the claim to be the subject of detailed assessment if not agreed.
MISS PROOPS: I am grateful, my Lord.
MR WALD: My Lord, I do apply for leave in this matter. There are two grounds for there being real prospect of success or some other compelling reason why the appeal should be heard. First, that there is an important question, and in my respectful submission unanswered, as to exactly how Bushell is to be applied, the question of leave in the context of a proposal which is specific rather than general. As your Lordship's judgment has it, the implications of the Lord Sainsbury letters policy are highly specific in this particular case. It is not animal experimentation generally that identifies a particular centre, and all that is left in those circumstances for the Inspector are the locational matters relating to the centre. So the first question that arises is how one applies Bushell, and to what degree it is legitimate to interpret expressions of Government policy in so specific a manner.
Secondly, it is similar to the first. If a set of pronouncements do account for Government policy, how are inspectors to proceed on the basis of a pre-inquiry meeting where a particular issue is identified as needing to be explored without further assistance from the court in understanding Government policy. It may also be of assistance for the Secretary of State to have some further guidance as to how to formulate policy so there is greater clarity about it. Clearly, in this case these claimants have incurred considerable costs proceeding on the basis of what, in my submission, was not a clear statement of policy in relation to this specific proposal. Unless I can assist you any further those are my submissions.
MR JUSTICE COLLINS: No, I think if you want to appeal you must persuade the Court of Appeal it is an appropriate case.
MISS PROOPS: My Lord, I wonder if you wish me to address you?
MR JUSTICE COLLINS: I assumed you would not be supporting that.
MISS PROOPS: No, my Lord.