Author: Brian Coleman
Last saved by: DFleuty
Company: Merrill Corporation

Case No: C0/10241/2008
Neutral Citation Number: [2009] EWHC 1621 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Sitting at:
Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET

Date: Friday, 1^st May 2009
Before:

THE HONOURABLE MR JUSTICE BEATSON, FBA
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Between:

| THE QUEEN ON THE APPLICATION OF ELIZABETH CONDRON | Claimant
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| (1)	MERTHYR TYDFIL COUNTY BOROUGH COUNCIL and (2)	CAERPHILLY COUNTY BOROUGH COUNCIL and (3)	MILLER ARGENT (SOUTH WEST) LIMITED | First Defendant Second Defendant Interested Party

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(DAR Transcript of 
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Mr Paul Stookes (instructed by Richard Buxton Environmental & Public Law) appeared as Solicitor Advocate on behalf of the Claimant.

Mr Geoffrey Stephenson appeared on behalf of the Defendants.

Mr Rhodri Price-Lewis QC appeared on behalf of the Interested Party.
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Judgment
(As Approved by the Court)
Crown Copyright©

Mr Justice Beatson:

1.	In this renewed application for permission to judicial review the claimant, Mrs Elizabeth Condron, seeks permission to challenge three planning permissions granted by Caerphilly County Borough, the second defendant, and one planning permission granted by Merthyr County Borough, the first defendant, to Miller Argent (South West) Limited, the developer and the interested party in these proceedings.  The permission was granted in respect of the Cwmbargoed disposal point (“the disposal point”), a facility in Merthyr Tydfil, occupying a site of 23.4 hectares.  The disposal point was granted planning permission in 1957 for the reception, storage, processing and onwards transportation of coal, extracted within the South Wales coalfield, and has been used since then.  The site straddles the areas of the two planning authorities.  20% of the site that is 4.7 hectares is within the boundary of the first defendant, and the remaining 80% is within the area of the second defendant.

2.	The main question before the court is whether the Environmental Impact Assessment Directive 85/337/EEC, (“the EIA Directive”), and the Environmental Impact Assessment Regulations 1999, as amended, SI1999 No 193 (“The EIA Regulations”) arguably required the defendants to carry out a screening assessment in respect of the applications.  The principal, but not the only, submission by Mr Stookes on behalf of the claimant is that the defendants were required to carry out such an assessment, and as they did not, they failed to comply with the Directive and the Regulations. Mr Stephenson and Mr Price‑Lewis QC, on behalf of the defendants and the interested party, submitted that the defendants were not required to carry out the screening assessment because the applications did not fall within the provisions of the Directive or the Regulations which require such an assessment.

3.	The disposal point is adjacent to, but separate from, the site at Ffos-y-fran, at which the interested party conducts opencast mining in relation to movement and reclamation operations.  The operations at Ffos-y-fran “have generated a great deal of local opposition” (I quote from Richards LJ in previous proceedings).

4.	At present the Land Reclamation Scheme, the third and last phase of the East Merthyr Land Reclamation Scheme, is being undertaken.  The planning permission for the Ffos-y-fran Land Reclamation Scheme was granted by the National Assembly after a two-week public inquiry.  The application for that permission was accompanied by an environmental statement.  There have, as I have observed, been previous judicial review proceedings challenging the planning decisions about the Ffos-y-fran site.  In the first, brought by this claimant, Condron v National Assembly for Wales [2006] EWCA Civ 1573, she unsuccessfully challenged the decision of the National Assembly for Wales in early 2005 to grant planning permission for the operations at that site.  In the second, a challenge by her to a decision of Merthyr Tydfil County Borough Council in December 2007 not to take enforcement action against the interested party, permission was refused.  Pre-action protocol letters were written on behalf of the claimant in respect of two other complaints concerning decisions of the National Assembly but proceedings were not instituted.  The purpose of the applications for planning permission which led to the decision now challenged was to enable the interested party to continue to use a disposal point for the duration of operations at the Ffos‑y‑fran Land Reclamation Scheme.  

5.	The defendants and the interested parties have said that they are to review the site which had been operating for many years since 1957.  The planning decisions now challenged are that by the first defendant, dated 3 September 2008, and those by the second defendant, two of which are dated 12 July 2007, and one of which is dated 18 June 2008.

6.	The two permissions dated 12 July 2007 granted permission to extend and refurbish a existing minimum processing preparation plant and provide a water storage tank and coal haulage vehicle workshop and ancillary facilities, including office accommodation, staff welfare facilities and a visitor training centre.  The lorry maintenance facilities, the offices and the new visitor centre have, see the interested party’s evidence, been constructed.  The decision by the second defendant dated 18 June 2008 extended the earlier consent from 1 December 2010 to 31 December 2024 so as to align it with the expected duration of the Ffos-y-fran Reclamation Scheme.  The decision dated 3 September 2008 made by first defendant was in respect of a similar application for the 4.7 hectares within the first defendant’s administrative area and also provided that the consent was to expire on 31 December 2024.  

7.	Proceedings were launched on 28 October 2008.  Permission was refused on the papers by Collins J on 9 March this year and the claimant renewed her application on 11 March.  It came before me at Cardiff Civil Justice Centre on 29 April.  There was an issue between the parties as to venue.  The claimant maintains she will not have a fair trial in Wales, that opencast mining in Wales is highly contentious, and that she is concerned that any regional court may not be impartial.  The defendants and the interested parties wish the claim to be heard by the Administrative Court in Wales.  I address the issue of venue after considering the arguability of the application on its merits.

8.	The permissions are challenged on two grounds.  The first is that the defendants failed to comply with the EIA Directive and the EIA Regulations by failing to carry out a screening assessment.  The second ground of challenge is that the two most recent decisions did not take account of another application by the interested party to change the original planning permission of the  Ffos‑y-fran site to allow some coal to be removed from the site by truck, whereas the current condition 37 provides for the removal of coal by train only.  That application was made on 24 July 2008. 

9.	Evidence in support of the application was filed in the form of three witness statements by Mr Stookes, a solicitor advocate and partner at Richard Buxton Environmental and Public Law, Cambridge, who appeared at the hearing before me.  The first two of these statements are dated 4 December 2008.  The first formally exhibits documents in the claim bundle, documents which were filed on 17 November 2008, almost a month after the claim was launched.  The second is an application for a protective costs order, which was not pursued because public funding has been obtained since then.  The third, dated 27 April, the day before the hearing, puts before the court a supplementary bundle of some 43 pages of additional documents.  

10.	On behalf of the defendants, evidence is served by the first defendant’s head of town and country planning, Mr Davis, and the second defendant’s development control manager, Mr Stephenson.  Though the statements in the court bundle are undated, they appear to have been filed together with the acknowledgements of service which are dated 17 November 2008.   

The legislative framework
11.	Counsel Directive 85/337/EEC of the EIA Directive concerns “the assessment of the effects of certain public and private projects on the environment”.  Article 2(1) requires member states provides that: 

“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are made subject to an assessment with regard to their effects.  Those projects are defined in Article 4.”

12.	Article 4(1) and (2) require an assessment to be made in accordance with Articles 5 to 10 of the Directive.  In the case of Article 4(1), “for projects listed in Annex I”, and in the case of Article 4(2), “for projects listed in Annex II”, in the latter case the Article 4(2) provides that member states shall determine through a case-by-case examination or thresholds or criteria set by the member state whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.

13.	Annexes 1 and 2 of the Directive are in the same terms as Schedule 1 and 2 to the UK’s implementing Regulations, and I do not set those out.

14.	The 1999 Regulations have been amended since then, most recently by the Town and Country Planning (Environmental Impact Assessment) Amendment England Regulations (SI 2008 No 2093).  Regulation 5 provides that a person who is minded to carry out development may request a planning authority to adopt a screening opinion and makes provisions for what must accompany such a request.  Regulations 5(4) and 5(5) provide that an authority shall undertake the screening opinion within three weeks of the receipt of a request, or such longer period as agreed, and send it to the first major request.

15.	Regulation 7 provides that, for certain categories of cases, paragraphs 5(3) and 5(4) shall apply as if an application was a request under Regulation 5(1) and, in this indirect way, impose an obligation on planning authorities, even though a request is not made by a person who is minded to develop.

16.	The obligation arises: 

“Where it appears to the relevant planning authority that --

(a) an application which is before them for determination is a Schedule 1 application or schedule 2 application; and 

(b) the development in question -- 

(i)	has not been the subject of a screening opinion or screening direction; or 

(ii)	in the case of a subsequent application, was the subject of a screening opinion or direction before planning permission was granted to the effect that it is not EIA development; and 

(c) the application is not accompanied by a statement referred to by the applicant as an environmental statement for the purposes of the Regulations.”

17.	Schedule 1 and Schedule 2 applications are defined in Regulation 2, The Interpretation Provision.  That states that a Schedule 1 development means development “of a description mentioned in Schedule 1”; and a Schedule 2 development means development “of a description mentioned in column 1 of the table in Schedule 2” where any part of the development is to be carried out in a sensitive area or any applicable threshold, or if criterion in the corresponding part of column 2 of that table is respectively exceeded or met in relation to that development.  It is common ground that the area which is the subject of these permissions is not a sensitive area.

18.	Schedule 2 to the Regulations describes the relevant developments and applicable thresholds and criteria in a tabular form.  There are two columns to the table.  The first column is under a general heading, “Description of Development”.  The second column lists the applicable thresholds and criteria.  The main headings of the first twelve paragraphs in column 1, or first twelve sections in column 1, list broad areas of activity; thus, 1 is agriculture and aquaculture; 2 is extracted industry; 3 is energy industry; 4 is production and processing of metals; 5 is mineral industry; 6 is chemical industry, unless included in Schedule 1; 7 is food industry; 8 textile, leather, wood and paper industry; 9 rubber industry; and 10 infrastructure projects.  11 is headed “Other Projects” and 12 is headed “Tourism and Leisure”.  It is not suggested that they have any application in this case.

19.	Paragraph 13 concerns any change to, or extension of, development of a description listed in Schedule 1, and the threshold criteria in column 2 refers to the relevant paragraph in Schedule 1, one of which is quarries and opencast mining.

20.	The material sections of Schedule 2 in the current application are Schedule 2, “Extractive Industry”; section 10, Infrastructure Projects”, and section 13.  The claimant submits that the applications fell within those headings; in particular, that they fell within 2(e), “Surface industrial installations for the extraction of coal, petroleum, natural gas and ores, as well as bituminous shale”, where the threshold is a development area exceeding 0.5 hectare. Secondly, it is submitted that they fell within section 10(b): 

“Urban development project, including the construction of shopping centres and car parks, sports stadiums, leisure centres and multiplex cinemas”

-- where the threshold is also an area exceeding half a hectare.  Thirdly, it is submitted by Mr Stookes that they fell within section 13 as a change to, or an extension of, development listed in Schedule 1, and that is opencast mining at the Ffos-y-fran site.

21.	The European Commission has given guidance on EIA screening, dated June 2001.  Section B3 of the guidance concerns the steps in screening.  The first step, set out in B3.1, is whether the project is an Annex I or an Annex II project.  It is stated “the first step in screening is to determine whether the project is listed in either Annex I or Annex II” of the Directive or any equivalent member state lists.  This paragraph also states, “In summary, if a project is not of a type listed in Annex I or II or any equivalent Member State lists, EIA is not required unless a Habitas Directive assessment is required”, which, as I have said, is not the case in this case.

22.	If a project is an Annex I or Annex II project, the next step is whether the project is of a mandatory list requiring EIA; the third step is whether the project is on an exclusion list exempting it from EIA; and the fourth step is a case by case consideration as to whether the project is likely to have significant effects on the environment.

23.	The guidance has a tabular representation of the steps to be taken by those considering whether an EIA assessment is needed.  There is a series of questions and arrows pointing down the “yes” or “no” columns.  Broadly speaking, step 1 asks whether the project is in a category listed in Annex I or 2.  If the answer is “no” the figure requires to consider the question whether the project is likely to have a significant effect on Natura 2000 site.  If the answer to that is “no” the figure says EIA is not required.

24.	In the way that is increasingly common in all sorts of documentation, as well as having it verbally and in a diagrammatic way, the process is summarised in the box before B3.  Mr Stookes places some reliance on the wording of that; in particular that: 

“If an application for development consent for an Annex I project is made without the environmental information required by the Directive, the authority must require the EIA procedure to be completed”

If an Annex II application is required without the environmental information, the authority must consider the need for EIA, recall the screening decision and reasons for it, and make it available to the public.

The claimant’s grounds
25.	The claimant’s case is that it is arguable that applications which are challenged fell within Regulation 7, and that, in failing to undertake a screening process or to carry out a screening assessment, the defendants erred in law.  Although all that the claimants have to show at this stage is that it is arguable Mr Stookes in fact considered that this would be a strong case.  He submitted there was a clear error.  Indeed, when the claimants originally filed their claim, they did so without a detailed statement of the facts and grounds and invited the defendants to consent to judgment.  Mr Stookes relied on statements of the European Court of Justice in a number of cases that the scope of the Directive is very wide, and on the obligation to give a broad interpretation to the provisions of the Directive.  He relied in particular on the decision in Ecologistas en Accion v Madrid [2008] C-142/07 and on the statement of the court in Commission v Italy C-87/02.  In paragraph 28 of its judgment in Ecologistas the court stated, citing a number of other cases, that the scope of Directive 85/337 is “very wide”.  That case concerned whether the Madrid ring road fell within the definitions which required an assessment.  The court said that it would be: 

“contrary to the very purpose of the amended directive to allow any urban road project to fall outside its scope solely on the ground that the directive does not expressly mention among the projects listed in Annexes I and II those concerning that kind of road.”

 In Commission v Italy the statement that: 

“no project likely to have significant effects on the environment should be exempt from assessment "unless the specific project excluded could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects’”

was relied on.  As I have observed, Mr Stookes also relied on the European Commission’s guidance on screening to which I have referred.

26.	Turning to the individual paragraphs, Mr Stookes submits that these applications fall within paragraphs 2(e), 10(b) and 13 of Schedule 2 and Annex II.  As far as paragraph 2(e) of Schedule 2 is concerned, he submits that the word “for” clearly, or at least arguably, means “relating to”, rather than the narrower “for the use of”.  He relies on the authorities stating that the provisions of the Directive, and thus of the implementing Regulations, should be construed broadly, and submits that 2(e) includes buildings used “in relation to” the extraction of coal.

27.	Paragraph 12(a) of Mr Stookes’ skeleton argument states: 

“Applying the wide scope and broad purpose required by the ECJ in Ecologistas it would be astonishing to exclude the Cwmbargoed project. Moreover, the narrow interpretation of para 2(e) alleged by the opposing parties would be unduly restrictive for a number of other projects.  It would, for instance, exclude all underground aspects of deepshaft coal mining for which environmental impacts are likely to be significant”

28.	Mr Stookes submits that the applications and the projects also fall within paragraph 10(b) of Schedule 2 and Annex II as “urban development projects”.  He relied on the decision of the Court of Appeal in R (Goodman) v London Borough of Lewisham and Big Yellow Property Company [2003] EWCA Civ 140 and other cases.  He also relied on page 9 of the European Commission’s guidance in the instruction section in which examples are given illustrating how to use the checklist in deciding whether EIA is required.  He relied on the project description given in the example which is the development of 500,000 homes adjacent to an existing rural settlement because the answer to the questions in the checklist are that an EIA is required in such a case.  As far as paragraph 13 of the Schedule is concerned, he submits that the project may be regarded as an extension to the main opencast operations.  In the case of quarries and opencast mining Schedule 2 points to paragraph 2A of Schedule 1.  That paragraph includes all development except the construction of building or other ancillary structures where the floor space does not exceed 1,000 square metres, a threshold exceeded in present applications by a considerable margin.

Arguability
29.	Collins J only had the benefit of Mr Stookes’ original submission and the evidence in his written statement.  In paragraph 4 of the observations he gave when refusing permission he stated:

“The attempt to rely on the wide purpose of the EIA Directive to show that the developments permitted were within Schedule 2 is without merit.  The opencast mining was dealt with through an enquiry and a fall EIA as it fell within 2(e).  The DP (which has been doing the same for previous coal mines in Wales as it now does for Ffos-y-fran) cannot by any stretch of the schedule be within 2(e).  To regard it as within 10(b) is an unjustifiable extension of the purpose of that and, since it does not itself fall within Schedule 2, and extension or modification equally cannot fall within it.”

30.	The grounds for renewing the application essentially repeat what was in the claim form.  Mr Stookes submitted that Collins J simply erred.  Paragraph 6 of his skeleton argument describes the defendants’ failure as stark.  I have, however, concluded that Collins J’s succinct observations did not err, and that the claimant has not shown an arguable case that the defendants’ decisions were flawed in law because they did not undertake a screening assessment.

31.	First, the requirement to carry out a screening assessment only arises under Article 4 of the Directive for the projects listed in annex 1 and annex 2, that is, the projects of a description mentioned in Schedule 1 and Schedule 2 of the UK Regulations.  Secondly, the projects so listed should be construed in the broad way stated in the various decisions of the European Court of Justice, but the teleological or purpose of approach required, when construing Directives and indeed secondary national legislation implementing directives, does not require individual passages to be construed regardless of context.  

32.	Thirdly, the decision in R (Goodman v London Borough of Lewisham and Big Yellow Property Company does not support the submissions made on behalf of the claimant.  In that case the Court of Appeal held that Lewisham misconstrued the 1999 Regulations. Buxton LJ, at paragraph 7 of his judgment, stated that the first question for a planning authority is to determine whether the application is a Schedule 2 application, that is “whether the development falls within the descriptions and limits set out in Schedule 2”

33.	The position would be similar in respect of Schedule 1 but Buxton LJ was not concerned with that.  Neither am I. 

34.	The defendants and the interested party accept that if the applications fall within the description or limits set out in Schedule 2, the failure of the defendants to take the preliminary decision to conduct a screening process, or alternatively their decision not to conduct such a process because they consider that it is not required, is susceptible to judicial review.  At this stage both Mr Stephenson and Mr Price‑Lewis accepted that the question is only whether that is arguably so.  In other words the defendants take the risk of error if they decide not to conduct a screening process in respect of a matter falling within the Schedule.  If, subject to one qualification, it is required as Buxton LJ stated in paragraph 8 of his judgment, that is wrong as a matter of law.  The court must correct the error, and, “in determining the meaning of the statutory expressions, the concept of reasonable judgement as embodied in Wednesbury simply has no part to play.”

35.	The qualification, however, is that identified most clearly in the speech of Lord Mustill in R v Monopolies and Merger Commissions, ex parte South Yorkshire Transport  [1993] 1 WLR 23 at 32.  His Lordship recognised that where an authority misconstrued or misunderstood a statutory expression, the court must correct it because it is an error of law, and not a matter of discretion.  But his Lordship Lord Mustill also recognised that where the statutory expression is imprecise, even in respect of what is formally an error of law, “the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational”

36.	In the Big Yellow Property Company case (see paragraph 14) the conclusion by Lewisham that a “storage and distribution facility” was not an urban development project within section 10(b) of Schedule 2 because it didn’t give rise to a significant impact on the environment was outside the range of reasonable responses.  Buxton LJ said that was so in the light of the wide range of examples given in paragraph 10(b).  

37.	The cases relied on by the claimant are all cases in which, applying the broad approach that court lays down, the European Court of Justice concluded that the project was one of those listed in the annexes.  In Ecologistas this was, as I have stated, the refurbishment and improvement of the Madrid Urban ring road.  The relevant authority had argued that there was no express reference to an urban road in the annexes.  They mentioned only “motorways, express roads and roads”, they did not mention “urban roads”.   The court concluded that it was contrary to the purpose of the Directive to allow a project to fall outside it solely on the ground that the Directive did not expressly mention it.  It accepted that the types of road mentioned were roads that were located in both urban built-up and outside built-up areas (see paragraph 29), and it concluded that the term “express roads” covered urban roads which had the characteristics set out in the annex, see paragraph 31.  Those characteristics were access only for interchanges and prohibition on and parking on carriageways.  

38.	In Paul Abraham v Region Wallone [2008] C-2/07, a judgment dated 28 September 2008, the ECJ considered whether an extension of the Liège‑Bierset Airport runway fell within the annex.  The annex referred to construction of airports with specified runway lengths, and it was argued by the Region that no assessment was required because the annex did not include airports as such.  The court held that what had occurred fell within the term “construction of airports”.  In this case no coal is extracted on the site of the disposal point.  It is, as I have described earlier, just that: a disposal point.  The disposal point was an existing facility for storing, processing and transporting coal elsewhere, anywhere in the South Wales minefield.  Although, given the contraction of mining in South Wales, an increased proportion came from Ffos-y-fran, the coal taken to the disposal point does not exclusively come from there.  The disposal point has existed and functioned for this purpose since 1957, that is, it has functioned for many years before the current operations at Ffos-y-Fran started in 2007.  

39.	The 0.5 hectare threshold is clearly exceeded, but it is not arguable that the activities fall within Section 2 as “extractive industry”.   This is because I accept the submission that the word “for” in 2(e) does not mean “in relation to”.  If it did it could apply to coal brought from far away and even, although the local conditions would not permit that, from abroad.  In the context of Schedule 2, paragraph 2(e) relates to buildings and plants used for and an essential part of mining development referred to in previous sub-paragraphs.  As far as section 10(b) is concerned, I do not consider it arguable that this applies.  The disposal point is not in an urban area.  The examples given in paragraph 10(b) are of projects -- shopping centres, car parks, sports stadiums, leisure centres and multiplex cinemas -- which attract large numbers of visitors.  Although there is a visitor centre within the current permissions and thus there are some visitors to the disposal point, the project has not involved either an urban area or urbanising an area that was previously rural, as was the case in the example given in the European Commission’s guidance.

40.	As far as paragraph 13 is concerned, Mr Stookes correctly points out that Collins J’s statement, that since the application does not itself fall within Schedule 2 any extension modification cannot fall within it, does not appear to attract the words of Section 13(a), which refers to a development of a description listed in Schedule 1.  But the development relied on by the claimants is the Ffos-y-fran opencast coal mining project.  That is on a separate site, albeit geographically close to the disposal point.  The applications do not involve any change in that development.  The disposal point operates in relation to other coal fields as well, and the effect of this application does not facilitate increased extraction from Ffos-y-fran. There is a link between Mr Stookes’ submission on paragraph 13 and ground 2 to which I will return.  This is because the claimant is relying on the fact that, in what is described as the planning application title (but in fact the page reference is a reference to the officer’s report), there is a reference to “related” operations at Ffos-y-fran.  I return to this aspect when considering ground 2.  However, on ground 1 I do not consider that the defendants’ decisions that the application did not require EIA are arguably flawed because the applications arguably fell within the three paragraphs which I have discussed.  

41.	I reach this conclusion without getting to what might be thought to be the second stage of the inquiry, that is, the approach of Lord Mustill in the South Yorkshire Transport case.  However, lest I am wrong in my assessment of what is arguably within the three paragraphs, I have also considered whether the conclusion that the applications were outside the scope of the obligation to have an EIA was arguably so bad that it could not be classed as rational and concluded it was not.

42.	There is a tension between the submissions of the defendants and the interested parties, that on the one hand the provisions of Schedule 2 are so clear that the court can conclude that the defendants made no error of law, and what might be a fall back position perhaps emphasised more by the interested party than by the defendants that insofar as the terms are precise, the court can safely conclude that the decisions were arguably out with the range of conclusions open to a rational decision maker.

43.	I turn to the second ground.  It is submitted on behalf of the claimant that the defendants have failed to consider the cumulative effect of the project and the proposed variation of condition 37 of the opencast permission in the application to transport up to 100,000 tons of coal by road instead of rail.  Mr Stookes submits that it is artificial to consider the disposal point project in isolation.  He relies on paragraph 44 of the ECJ’s judgment in Ecologistas and paragraph 45 of its decision in Abraham v Region Wallone.  His submission is that it is not open to a planning authority to slice up projects and consider them in isolation.  The opencast operations at Ffos-y-far will extract between 750,000 and a million tons but the applications concerning the disposal point are for processing up to 1.5 million tons.  

44.	I referred to the reference to “related operations” in the officer’s report in the description of  the application.  The applications themselves, so far as I can see, refer to “ancillary facilities for use in connection with mineral extraction operations at Ffos-y-Fran”; see for example the applications dated 22 February 2007.  

45.	Despite some concern about this I have concluded that this ground is also not arguable.  First, the failure to take account of the application to vary condition 37 of the Ffos-y-fran permission cannot be a criticism of the first three permissions given on 12 July 2007 and 18 June 2008, because the application to vary condition 37 was only made on 24 July 2008.  As for the last of the applications, that on 3 September 2008, there is no evidence whatsoever before the court that granting this or the earlier applications would increase output from Ffos-y-fran.  

46.	Secondly, the sites are distinct in function and purpose, and history, and there is no arguable logical connection between them.  Although material extracted at Ffos-y-fran is taken to the disposal point, so is material from other mines in South Wales.  The interested party’s submission that if this is to be regarded as a link then the impact of the totality of all mines and on all other direct extraction in mines which comes to the disposal point would fall to be for consideration. 

47.	Thirdly, the figures relied on by Mr Stookes elide the Ffos-y-fran site with the disposal site.  There is no limit on the tonnage that can be processed through the disposal site at present, and so if anything the proposed limit restricts operations on the site, albeit in theory (inaudible) the contraction of mining in South Wales.  So thus, contrary to the claimant’s submission, what these applications do is to place a limit on the activities of the disposal point.  For these reasons I have concluded that those factors outweigh the use of the word “related” in the application.

48.	I turn to the question of delay.  In view of my conclusion on the substantive grounds it is not necessary to deal with delay, but the claimant has not adequately explained her delay.  What was said on the claimant’s behalf by Mr Stookes was she had no knowledge of these applications prior to 10 September 2008; that the Caerphilly applications were advertised in the Rhymney Valley Express; that there were no references to the application in the minutes of the liaison committee.  Contrary to what is stated in paragraph 25(d) of the skeleton argument dated 29 April, in the oral argument Mr Stookes accepted that they may have been discussed then.

49.	Mr Stookes also submitted that the court should take into account that there is a continuing failure.  In these circumstances there is a continuing obligation to remedy the failure in European law: see C-201/02 Wells v Secretary of State, a decision of the Fifth Chamber of the ECJ on 7 January 2004.  He also submitted there is no prejudice to the defendants or to the interested party.  Finally, he submitted that, if there has been a delay, time should be extended because it is contrary to Article 10a of the Directive to preclude the claimant from access to a review process.  

50.	In respect of the two permissions granted in 2007 by the second defendant, the claim was brought one year and three months later.  As Collins J said:

“It is far too late to allow any claim to proceed against those.”

51.	Those permissions permitted works to extend facilities on the disposal point.  Those works have been carried out.  There would be substantial prejudice to the interested party if it would have to stop using the lorry maintenance facility, the offices, and the new visitor centre, constructed no doubt at considerable cost.  There is no issue but that the defendants complied with their legal obligations as to advertise applications for planning permission and to post notices.  The claimant did not see them.  That is not a reason for extending time.  

52.	There is no arguable breach of Article 10a of the Directive for a delay of this sort.  What Article 10a requires is access to a review procedure before a court of law.  It is no part of the jurisprudence of the European Court of Justice, nor of any case put in front of me, that it is arguable that access to a review procedure subject to a time limit is not sufficient.  

53.	I also have regard to the fact that there was no explanation given for the delay in the form N461.  Where there has been delay the court is, moreover, entitled to conclude that time should not be extended unless the claim is, to use Keene LJ’s expression in Finn-Kelcey [2008] EWCA Civ 1067 at paragraph 29, clear cut.  In other words it must be a strong claim.  It must be one that in the public interest should be allowed to proceed despite the delay and absence of explanation.

54.	Again I agree with Collins J who has put the matter much more briefly than I have.  In paragraph 2 of his observations he says of the 2008 permissions: 

“…one is beyond the 3 month limit, one not, but both clearly stand or fall together and there has been a failure to act promptly.  Delay in itself would justify a refusal of permission.”

55.	I have focussed on the strength of the substantive challenge and reached my decision on that basis.  However, had I concluded that permission should have been given for a prompt challenge, I would, nevertheless, have agreed with Collins J that, in the circumstances of this case, the delay in itself justifies the refusal of permission.

Venue
56.	The submissions on venue are in the light of my conclusions moot.  Nevertheless, this is only the second case heard in this courtroom since the full operation of the Administrative Court in Wales.  For this reason, in view of the submissions, I consider it appropriate to say something about venue.  

57.	Mr Stookes in his summary reply to the grounds of defence states (paragraph 17-19) that the claimant does not wish proceedings to be transferred to Wales:

“She considers that she will not have a fair trial. Opencast coal mining in Wales is highly contentious and the Claimant is concerned that any regional court may not be impartial. Further, she has continuing concern for her own safety and tension is likely to increase if the matter is heard in Cardiff. This will not be conducive to a fair and impartial hearing.”

58.	Paragraphs 18 and 19 of the reply deal with the position in 2005 in connection with the earlier proceeding that ultimately came before the Court of Appeal in London and in which Richards and Ward LJJ commented that the case should be heard in Wales.  Mr Stookes submits that they did not see the representations made to the Administrative Court office when making those statements.

59.	This submission was advanced before me by a solicitor who is an officer of the court.  The only evidence to support his generalised submission that any, and I emphasise any, regional court may not be impartial is the correspondence that was before the court in the earlier 2005 proceedings.  That consists of the letters of 7 and 14 July, 15 September, and an undated letter from the then Master of the Administrative Court, now Deputy Master Knapman.  At that stage, while the National Assembly wanted  transfer to Wales, the interested party’s position was that it wanted to maintain the trial date wherever it was.  

60.	The high point of the evidence before me is what was said in 2005.  Reliance is also placed on an article in a local paper which is said to be constructed from a press release issued by the interested party after Collins J refused permission.  In effect this argument is that regional courts -- and I observe that in Wales there might be some sensitivity about being described as a region -- should not hear matters contentious in that region.  I am surprised that Mr Stookes felt able to pursue this submission in the absence of evidence.  The submission that cases should be heard at a location remote from the places and events with which they are concerned is to my mind an extraordinary one.  It is inconsistent with the general approach favouring local justice.  In the context of criminal proceedings, the general approach is that defendants should, absent particular concern about the impact of local publicity on a jury, be tried in the relevant locality. This court sits without a jury.  Accordingly, that point does not arise.  Claimants in administrative court proceedings now have a choice as to where to go and where to issue their proceedings.  But if they issue outside the region with which they have the closest connection they are asked to to give reasons for doing so in the new form N461.  

61.	The general expectation under Practice Direction 54D of the Administrative Court (Venue) is that proceedings will be administered and determined in the region in which the claimant has the closest connection.  Paragraph 5.2 makes provision for a broad and flexible approach, taking account of a wide variety of factors.  It will be possible for defendants to apply to have a case transferred and it will be possible for claimants to issue outside the region.  Where the parties are content that a case be heard outside the region in which the claimant has the closest connection, it is unlikely that in the ordinary case a court will exercise the own motion power in paragraph 5.4 of the Practice Direction to direct that a claim be determined elsewhere.  I do, however, observe that, in a case involving a Welsh public authority because of the legal instruments passed by the Assembly, in particular in the planning context, there may be justification for a more robust approach.  In those cases the court may be more proactive in initiating the transfer.  The Practice Direction implements the Justice Outside London report.  That states in paragraph 65 that there is a “strong expectation” for Welsh judicial review cases against the decisions of devolved institutions and of Welsh local and public authorities will be heard in Wales, and if issued elsewhere transferred to Wales, absent good reason.

62.	If a claimant wishes to proceed elsewhere there may be good reason for doing so but a generalised allegation of bias or unparticularised concern unbacked by any evidence is not enough and is not a proper basis for such an application.

63.	Finally I note that the way this claim has proceeded has not been what one is used to in the Administrative Court in London.  The claimant has not complied with the CPR.  The identities of the claimants were not revealed in the protocol letters.  There was no detailed statement of facts and grounds in the N461.  There was a statement in the N461 about the position regarding public funding which was inaccurate at the date the claimants filed.  Finally, the day before the hearing an additional statement with 43 pages of documentary evidence was filed.  That included material dated as early as 22 September 2006.  No explanation or statement of why the material was submitted so late was given before the hearing.  Mr Stookes suggested in the course of the hearing that this was due to late discovery by the defendant and the interested party.

64.	None of that material was relied on before me.  The court observes that this disregard of the rules is to be regretted.  It is the sort of thing that may happen with litigants in person.  However, as Collins J observed, the claimant and her solicitor are well versed in judicial review in this sort of case.  I respectfully agree with his Lordship that such a wholesale failure regarding the rules and the Practice Directions may of itself justify the refusal of permission.

65.	For these reasons I reject this application for permission.

Order: Application refused

MR STEPHENSON:  My Lord that leaves the question of costs and that is slightly complicated in this case.  Before I deal with it, my , may I also thank your Lordship for that careful and detailed judgment and just make one other observation just on the last few points your Lordship made about the failure to comply with the CPR.  One of the failures that your Lordship has mentioned in the course of your judgment has been the failure to include or even acknowledge the delay in form N461 (over a minute inaudible – drilling noise). …that the Legal Services Commission were made aware of Collins J’s decision in the case.  He had said that they were.  Now that raises a question over the soundness of the decision.  It is extraordinary of my learned friend, if I may say so, to say that officers of the Legal Services Commission…

MR JUSTICE BEATSON: … I am not going to get into satellite litigation.  You knew, either the defendants or the interested party wrote directly to the Legal Services Commission about this and…

MR STEPHENSON:  We didn’t know at that stage that that had happened.  I have accepted what my learned friend has said about it and the only thing I said is we may pursue it, but that doesn’t matter.  For the purposes of this case I have put in my schedule of costs my Lord and what we …

MR JUSTICE BEATSON:  May I ask what is the red, the difference between yesterday and today?

MR STEPHENSON:  Yes that’s right.  The additions of today.  If you look at the Caerphilly one first of all my Lord, which has been…

MR JUSTICE BEATSON:  May I just ask, I want to know -- I was told two…I made enquiries about the timing of the hearing yesterday.  I was told by the officer two counsel (inaudible)?  Can I just confirm what the position as to discussions is in broad terms?

MR STEPHENSON:  I made no representations at all …

MR JUSTICE BEATSON:  I don’t think Mr Stookes did either.  

MR PRICE-LEWIS (?): It’s down to me, my Lord.

MR JUSTICE BEATSON:  So it’s down to you.  All I am really going to say insofar as we have gone over to today…

MR PRICE-LEWIS:  May I say what I think happened.  I heard at the end of last week that we were listed for yesterday.  I asked my clerk if it was possible to have a time listing.  That is all.  We didn’t say I couldn’t get here for 10 or anything of that sort.  I practise in London but I actually live in Wales as it happens…

MR JUSTICE BEATSON:  Well I thought you did.

MR PRICE-LEWIS: I always have practised in London and now welcome your Lordship’s comments about (inaudible) even though I (inaudible).  I practise and always have practised in London.  I am pleased to hear (inaudible) if I may so.  But, my Lord, all I asked my clerk to check was whether we could have the time listing.  The next I was told it was listed for 2:00.  We didn’t know whether your Lordship had a morning list, whether that was the listing in any event

MR JUSTICE BEATSON:  No, well, it was listed for 10.30 and it is fair to say that the bundles arrived together with…I had the original bundle and I had a bundle with the acknowledgement of services and these two arrived late on the evening.  They arrived in accordance with what I had asked for…

MR PRICE-LEWIS:  Your Lordship ordered 4 pm on the day before.

MR JUSTICE BEATSON:  And so I though there was quite a lot to read in addition to what I had previously, so that it may be that the court is partly culpable in this.  But given that the application appears to have been made,  I just see the dramatic impact on Merthyr, on both of them.

MR PRICE-LEWIS:  If I am at fault, I apologise.  I certainly take any responsibility for whatever my clerk says.  He’s a long-standing clerk.  I asked him to make an inquiry about the listing.
  
MR JUSTICE BEATSON:  No, no I am very happy with what you say. Mr Stephenson, you were cut off.  

MR STEPHENSON:  My Lord, I am grateful.  It needed clarifying.  My Lord, so far as Caerphilly is concerned, therefore, since the legal aid certificate was dated 16 April the order for costs should be split into two parts my Lord, I would respectfully suggest and submit.  The first is those costs up until 16 April, which we ask for against Mrs Condron, and the costs after 16 April which we also ask for against Mrs Condron but as I understand the usual practice is not to be enforced without (inaudible).  That means that the total costs need to be split.  Now can I deal with the Caerphilly one first of all because that is the more straightforward one.  On the first page the Caerphilly solicitor has charged out at five hours at £87 per hour, £435.  On the second page we have the counsel’s fees for advice.  That is advice for conference, documents and suchlike which subsumes the acknowledgement of service and the other documents (inaudible) advice related to that.  And then the fee for the hearing and then a refresher for today.  All of these fees, the fees are Caerphilly’s fees, they are exactly the same for Merthyr’s fees.  Now my Lord I submit that we are entitled to ignore the costs after the 16 April because all those fees up until that stage related to the dealing with the acknowledgement of service. They were not my fees.

MR JUSTICE BEATSON:  These are all … so your fees as it were come in after (inaudible).  Were you not involved in the acknowledgement of service?

MR STEPHENSON:  Only the fees for the hearing.  Yes, I was involved in the  acknowledgment of service and all the advice etc that went with that.  All I said was that this isn’t a case where you can simply take out an acknowledgement of service and look at the solicitors’ costs dealing with that plus my costs of drafting it because this is a case in which we have had to deal with a rolling case which has gone on.  We have the original acknowledgement of service as your Lordship knows which was simply stating a summary acknowledgement but which we had to deal with …
MR JUSTICE BEATSON:  (inaudible) the original claim …

MR STEPHENSON:  The original claim had to be dealt with as if it were a proper claim.  It had to be (inaudible) in 21 days and then at the end of that 21 days in came the detailed grounds of claim plus all the documents, a large amount of which are now before your Lordship and then after that we had to deal, as I said earlier, with the note on delay.  And in all the correspondence which your Lordship has seen there have been suggestions that my learned friend has dealt with the claim as a sort of protocol matter inviting that resistance that the claim be acknowledged and submitted for judgment.  For the reasons your Lordship set out all these matters are related to dealing with the claim in its earlier stages, all of which should have been put to bed if I can put it like (two minutes that are inaudible because of drilling noise)

MR JUSTICE BEATSON: It’s only the hearing since then.

SPEAKER (?): (inaudible)

MR STEPHENSON: That’s the point.  If your Lordship wishes, we would wish you to deal with it that way, simply because it saves the costs of taxation.  But if your Lordship feels unable to I would be very happy to have an assessment.  It is rather complicated.

MR JUSTICE BEATSON:  Well I want to hear (inaudible)

MR STEPHENSON:  Yes.
  
MR JUSTICE BEATSON: So then Merthyr…

MR STEPHENSON: Yes.  If I can go back, my Lord, because as I say I have put in red the extra costs in Caerphilly’s case, our total costs there are £5,790.25 including VAT.  If your Lordship does divide, then what your Lordship should do in my respectful submission is deduct the cost of the hearing and the costs of the refresher and that would…

MR JUSTICE BEATSON:  It would be £3,790.

MR STEPHENSON:  That’s right, my Lord yes.  So that would be the sum we would seek against Mrs Condron.  (Inaudible) and then no restriction and then the balance of that after that with the restriction and then exactly the same, my Lord, for Merthyr.  I would invite your Lordship to deduct £1500 for the fee of this hearing and £500 for the refresher.  That makes a deduction of £2,000 from the total …

MR JUSTICE BEATSON:  I am going to rise (inaudible)

(Court rises) 

MR STEPHENSON (?):  So far as deducting £2,000 in each case for the costs incurred since 16 April which would be essentially my costs of attendance and refresher. 

(20 seconds inaudible – drilling noise)

MR JUSTICE BEATSON: It has been more expensive for Merthyr than Caerphilly.  Caerphilly drives a harder bargain.

MR STEPHENSON:  My Lord the only extra is that the solicitor for Merthyr charges a larger amount, a higher hourly rate, than the solicitor for Caerphilly.

MR JUSTICE BEATSON:  This reflects my newness in this part of the world.  There are guidelines for summary assessment and they don’t allow for summary assessment (inaudible) crude, not just this process and we have standard 

(30 seconds inaudible – drilling noise)

MR STEPHENSON:  My Lord, I am sorry there is a very considerable (inaudible).  I hadn’t picked this up, I’m afraid.  In the Merthyr one there are attendances on, five hours at £120 is £600 and then there are the attendances at hearing. 
  
MR JUSTICE BEATSON:  So the attendances at the hearing are all as it were attributable to Merthyr although …

MR STEPHENSON:  That’s right yes.  Then there is the extra for the additional hourly rate plus the extra hours’ work and those two together make up the difference between as your Lordship quite rightly says (inaudible)

MR STOOKES:  My Lord I am just looking at the bottom line which…

MR JUSTICE BEATSON:  Whoever wrote this in red it’s not me.

MR STEPHENSON: I would say it’s me, my Lord.

MR JUSTICE BEATSON:  (inaudible) £7498 and £5790.

MR STEPHENSON: Yes.

MR JUSTICE BEATSON:  So that’s your bottom line and that’s what I am looking at. 

MR STEPHENSON:  Doing it very roughly,  that’s right because the difference is only £1500, £1700 and the difference between the solicitor’s rates …

MR JUSTICE BEATSON: The difference between the solicitor’s rates and the £600 for the attendance.

MR STEPHENSON:  Plus the working out of VAT of course.  So that … I am grateful to your Lordship for pointing that out.  So that’s the order I ask for.

MR JUSTICE BEATSON: Right.

MR PRICE-LEWIS: My Lord I am conscious as I represent the interested party in the Mount Cook position that I am very limited in what I can say.  I have a schedule which I fear may make your Lordship’s eyes water. 

MR JUSTICE BEATSON:  Probably best I don’t see it.

MR PRICE-LEWIS: I think that might be the case, my Lord, yes. But it is a significant amount of money obviously.

MR JUSTICE BEATSON: It is an interesting fact that when….I will just say this for the benefit of all advocates…that last year when I moved to the Administrative Court the commercial court used to the level of costs in the Administrative Court cases (inaudible).  You are in the Mount Cook position.  You have your written and oral submissions which of course have been helpful, but I don’t think..

MR PRICE-LEWIS:  I wouldn’t press that on you.  I simply refer your Lordship to that case (inaudible).  May I just mention one matter. 

MR JUSTICE BEATSON:  Yes.

MR PRICE-LEWIS: My Lord in our original grounds of objection we do drawn attention to concern about funding.  It is on page 30 of the supplementary bundle …  At page 5 of my grounds of objection which I drafted.  It’s a disclosure of the full position as to funding.  It’s paragraph 8(1), preliminary matters, and I refer to the claim form and the answer that was given.

MR JUSTICE BEATSON:  Yes, I referred to that in my judgement

MR PRICE-LEWIS:  Absolutely, my Lord, but I simply refer to this.  We were invited by the Legal Services Commission to make representations.  That is the position.  We made those representations and then funding was refused.  Collins J made his decision on the written permission application and we were frankly surprised that after that and given the initial refusal the only thing that seems to have changed was the refusal of permission, that funding was suddenly given.  When I asked my learned friend today whether Collins J’s order had gone before the Legal Services Commission and he tells me and I would like it on the public record that that is the case.  We find that surprising if there are no other change of circumstances that an order of the High Court judge seems to produce as it were a decision the other way from the Legal Services Commission.  We do express concern at that given the history.

MR JUSTICE BEATSON:  Forgive me for interrupting.  I can understand why you’re concerned about this but I don’t know what submissions were put before the Legal Services Commission.  What practical…putting it bluntly, what is it that you want me to do?

MR PRICE-LEWIS:  My Lord I want it on the public record, the concern because both counsel and I understand my clients will want to consider the matter and check the matter.

MR JUSTICE BEATSON:  Well I have referred to the position in the judgment.  It is normal actually, claimants are normally in quite a difficult position with respect to public funding.  And it is true that this is the first time that I have seen a funding decision made after a quite full observation (inaudible) but I don’t know what the claimant submitted to the Legal Services Commission and in these environmental decisions (inaudible) and I am not going to get out of the box that I am in deciding this renewed application.  If there is an issue…I mean the other thing is, it’s not very attractive…the  Legal Services Commission (inaudible) for themselves.  I appreciate that as you are in the Mount Cook position you could say I have got more of an interest in it because I am exposed without any help so it really is for the interested party to consider what to do.  I can ask for a transcript (inaudible)

MR PRICE-LEWIS.  That’s exactly what I want, and that’s all I want.  

MR JUSTICE BEATSON:  But as I say it does seem … 
(one minute 25 seconds inaudible – drilling noise)

MR STOOKES(?): …  completed a controlled work form which is the former legal help or before that the former green form scheme.  If she does that and then receives later a funding certificate, then she is covered and it’s backdated to the date of…

MR JUSTICE BEATSON: Is that the position here?

MR STOOKES:  It is the position, yes

MR JUSTICE BEATSON:  What is the date (inaudible)?

MR STOOKES: It would have been prior, in fact it would have been September 2008 my Lord, or a day or two after the date when she first became aware of permission, and that was the time when preliminary work started on this application.

MR JUSTICE BEATSON:  So you become aware of the application.  Is that because you get funding from that date once you have… the funding is going to support you effectively for the hearing.

MR STOOKES:  The funding will, that’s correct, and the funding itself is not backdated but the protection received from the controlled work 1 form does trigger or backdate the…

MR JUSTICE BEATSON: I haven’t got a white book with me.  Are you going to help me? I shall ask my clerk.  (to clerk)Could you get a white book? (to counsel) I mean if that is so, I…

MR STOOKES:  It is certainly our understanding and experience of that, but I have no…

MR JUSTICE BEATSON:  I know but my problem is that you have got that understanding, Mr Stephenson made a submission based on a different understanding.   Without discourtesy to either of you, I would like something firmer than understanding and if I can’t deal with it now I am perfectly happy to say that in principle, unless you have something to say about it, I don’t think you can resist an order for costs.  The issue here is the restriction… Is there any other issue?

MR STOOKES:  I would say yes, on the principle of an order of costs this case is an environmental case and in a public law case, where the claimant has no direct impact on her property, for example, it falls squarely in case that there should be under Davey the principle of no order for costs, albeit that we are dealing with a renewed permission.  

MR JUSTICE BEATSON:  Can you show me Davey? 

MR STOOKES: I can’t…
 
MR JUSTICE BEATSON: Is that Fordham?

MR STOOKES:  This is Fordham, yes.

MR JUSTICE BEATSON:  Well I think…I tell you what I am going to do,  Mr Stookes, I have got the submissions.  I will let you complete those submissions.  I haven’t got the material but I am going to say the following.  I will let Mr Stephenson reply once you have finished.  I am going to ask for written submissions on this point,  well on two points, on whether you are publicly funded from day 10, but the stay on enforcement should apply from the date you filled out the form, because it seems to me just without deciding it at all but just as a matter of logic so you know what you have to address, Mr Stookes.  It is illogical that if you have not got permission then you would have no protection at all, sorry if you have not got funding you have no protection at all, and if the Legal Services Commission decides to give funding from a date just before the hearing but has refused you beforehand, the notion that you are protected for the period in which your application has been refused, then it may that there is some justification for that.  It just doesn’t seem very logical.  The claimant decides to go on despite the absence of funding.  The Legal Services Commission could decide to give you funding backdated, they decided not to do so but I am concerned about that.  I am not going to go against you without giving you a chance to make written submissions and Mr Stephenson to respond.  

And then as for costs of environmental cases it’s a double-edged thing because there is no personal interest.  On the other hand you have got standing in this case and no court would deny that you have got standing.  You have abandoned your protective costs application.  You don’t pursue it in relation to the period before the 16^th, so I’ll let you make written submissions about that.  But I am…you can see that I am not, you will have to make a strong case.  I am not ruling you out. If every environmental case was one at which the defendants proceed on the basis that they would bear the costs whatever, that’s quite a sharp distinction, sharp difference.  There are special cases in which costs are not (inaudible).  That is what I propose to do.

MR STOOKES: My Lord, are you content for me to put my submissions on costs at the end of my submissions?

MR JUSTICE BEATSON:  Well I would like to know the headings on them so that Mr Stephenson knows what he has to answer.

MR STOOKES: It would be the first point on the Legal Services Commission.

(one minute inaudible – drilling noise)

MR JUSTICE BEATSON:  I am going to be in Birmingham for the rest of the month, but I will send my clerk in she can give you her email address and submissions can be emailed and I will get them (inaudible).  Seven days (inaudible).

MR STEPHENSON: Seven days is difficult.  What I was going to suggest if I may do so with respect is that the order should be that my learned friend Mr Stookes puts in his submission in seven days…

MR JUSTICE BEATSON:  And you have another seven days to reply.

MR STEPHENSON:  Yes

MR JUSTICE BEATSON:  And then for me to determine and make a summary assessment on the papers…

MR STEPHENSON: Yes.

MR JUSTICE BEATSON:  …without a further hearing.  Are you content with that?

MR STEPHENSON:  I am content with that my Lord. 

MR JUSTICE BEATSON:  Right, well that us do that.  Can I ask that the order to reflect the outcome of today’s hearing.  Can you draft an order?  I think that it wouldn’t have to happen in London.  It could happen in Cardiff as well.

MR STOOKES:  My Lord, there are two other points.  The first is I do take issue with the point.  I appreciate what has been said about the approach to the CPR that this has not been simply the fault of the claimant, certainly not the fault of the claimant or their instructing solicitors on this, and we had sought to seek disclosure of a number of documents persistently throughout and I think there is equally apportionment of blame for the way that the matter has proceeded.  In terms of the supplementary bundle and the documents that were there, witness statements…

MR JUSTICE BEATSON:  I referred in the judgment to the fact you (inaudible) disclosure. 

MR STOOKES: No, my Lord following on from that, the point about the supplementary bundle.  The reason the witness statement was in and the supplement, it was agreed by both parties that we put these in.  We sent over and I said, well what documentation do we want, and they said could you list and put in to the document the various letters and we said ok but we are going to include in that list a number of others, and there was not objection to that.  The reason for putting in a supplementary bundle is to assist the court (inaudible) than us (inaudible).

MR STEPHENSON:  It is expressly not accepted that it is agreed.  At the very outset yesterday, I wrote to object to them being in.  My instructing solicitors emailed my learned friend to say that.

MR STOOKES: The final point, and the process and the procedure on where we have an order.  The claimant does have a right to renew her permission application to the Court of Appeal.  That is subject to strict time limits, at least seven days to put in (inaudible) get a new permission to apply for.  We would ask that that or ask for an order now that that seven days does not start until the date of the order rather than the date of today.

MR JUSTICE BEATSON: The date of which order?

MR STOOKES:  The date of refusal of permission.

MR JUSTICE BEATSON: The refusal of permission is today.

MR STOOKES:  I would need to, if I can have it…

MR JUSTICE BEATSON:  If you needed an extension of time in the matter…

MR STOOKES:  Well…

MR JUSTICE BEATSON:  With the bank holiday weekend coming up …

MR STOOKES: My Lord, I ask for an extension of time.

MR JUSTICE BEATSON:   How much do you ask for?

MR STOOKES:  Until seven days after the date of the order, the date after your note on the submissions.

MR JUSTICE BEATSON:  Seven days after  … I don’t … which submissions?

MR STOOKES: Well seven days from the receipt of the order, submissions on costs my Lord.

MR JUSTICE BEATSON:  No, no, no.  You are not going to (inaudible).  The issue about costs is completely… you are not going to get... are you applying for permission to appeal on my decision about costs?  I have made my decision.  I am refusing you permission and so the time runs from, as I understand it, from now.  I am deferring consideration of costs as a separate issue and I am open to the suggestion because it is a bank holiday weekend that you should have more than seven days from today and I am willing to say fourteen days from today.  I am not willing to say until I adjudicate on costs because that is seven days for you,  seven days for Mr Stephenson, and then the issue is then it comes in,  I don’t know what I will be doing, how soon I can attend to it.  So I am perfectly happy to give you fourteen days from today

MR STOOKES: My Lord, I am grateful.  I have taken the point and it’s a distinct term  application and there will be a distinct matter on costs

MR JUSTICE BEATSON:  Yes, so you will have to ask for a transcript and you will have to ask for it to be expedited and the learned clerk can assist you.  I am not sure (inaudible).  Get the court office to help.  Good, I am grateful to all of you.  I will keep the summary assessment documents.  Well actually I am not going to keep them.  What I am going to ask, Mr Stephenson, is that when you make your submissions you furnish another set of them.

MR STEPHENSON:  I am grateful.  Not included in my 15 pages, I hope.

MR JUSTICE BEATSON: No, no, no the 15 pages are submission. If you submit an authority, it doesn’t count.

MR STEPHENSON: I am grateful my Lord.