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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Environment Agency v Biffa Waste Services Ltd [2006] EWHC 3495 (Admin) (12 December 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/3495.html Cite as: [2006] EWHC 3495 (Admin)

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

		Royal Courts of Justice Strand London WC2
		12 December 2006

1. LORD JUSTICE PILL: This is an appeal by the Environment Agency ("the appellants") against a decision of District Judge (Magistrates' Court) Crabtree, sitting at North and East Hertfordshire Magistrates' Court, dated 4 April 2006. The district judge dismissed charges brought by the appellants against Biffa Waste Services ("the respondents") which alleged that the respondents had failed to comply with condition 2.6.12 of Pollution Prevention and Control Permit BK 1988, contrary to Regulation 32 (1) (b) of Part 6 of the Pollution Prevention and Control Regulations 2000 ("the 2000 Regulations") and Section 2 of the Pollution Prevention and Control Regulations 1999 ("the 1999 Act"). Other charges alleging breaches of the Environmental Protection Act 1990 were not pursued on the ground that the relevant sections had been disapplied where the site in question was regulated, as this one was, by way of a permit issued under the 2000 Regulations. The appeal is by way of case stated.
2. The informations preferred arose out of complaints from local residents that strong odours had been emitted from the respondent's landfill site at Westmill Road, Ware, Hertfordshire. The informations covered a series of dates from August 2004 to February 2005. The case stated notes that the respondents had submitted that the charges were non-justiciable. The district judge recorded his findings, first, that the nature of the requirements imposed by condition 2.6.12 were unambiguous; secondly, he ruled that "the condition was ultra vires as it exceeded the object of the power to include conditions in permits, and also usurped the role of the court".
3. In stating a case, the district judge stated:

"The question for the opinion of the High Court is:

Was I correct to rule that, by the inclusion of the phrase ' ..... as perceived by an authorised officer of the Agency', Condition 2.6.12 of PPC permit number BK 1988 issued in respect of the respondent company's site known as 'Westmill II' was invalid or ultra vires on any or all of the following grounds:

a. It offends the principles of certainty (clarity and foreseeability) required for the elements of an offence by:

(i) Domestic law and/or

(ii) Art 7 ECHR.

b. It has the effect of usurping the fact finding and adjudicative roles of the Court by bestowing on an authorised officer the functions of establishing the relevant facts (according to that officer's subjective judgement) and obliging the Court to convict whenever it is satisfied that the officer honestly perceived those facts.

c. It results in a Condition which extends beyond the object of the power provided for at Regulation 8 of the Landfill (England and Wales) Regulations 2002."

4. The Landfill (England and Wales) Regulations 2002 ("the 2002 Regulations") were made in exercise of powers conferred by Section 2 of the 1999 Act. They set out a specific regime for landfill permits, such permit being required by the 2000 Regulations for the disposal of waste in landfill. The respondents required a landfill permit to carry out the disposal of waste on their site. Regulation 8 (1) provides that -

"A landfill permit shall include conditions specifying the list of defined types, and the total quantity, of waste authorised to be deposited in the landfill."

Regulation 8 (2) (a) provides that such a permit -

" ..... shall also include appropriate conditions -

specifying [amongst other things] requirements for -

.....

monitoring and control procedures, including contingency plans."

Regulation 8 (3) provides that a landfill permit -

" ..... shall also include -

(a) appropriate conditions for ensuring compliance with the requirements ..... "

5. Paragraph (5) of Schedule 2 provides, inter alia, that measures must be taken to minimise the nuisances arising from the landfill in relation to the emission of odours and dust - (5) (1) (a).
6. Regulation 14 provides, insofar as is material:

"(1) The following requirements shall apply to landfill sites from the start of the operational phase until definitive closure.

(2) The operator shall carry out the control and monitoring procedures set out in Schedule 3.

(3) Where the procedures required by paragraph (2) reveal any significant adverse environmental effects, the operator shall notify the Environment Agency as soon as reasonably possible.

(4) When it receives a notification of significant adverse environmental effects in accordance with paragraph (3), the Environment Agency shall determine the nature and timing of corrective measures that are necessary and shall require the operator to carry them out.

(5) The operator shall report at intervals specified by the Environmental Agency, on the basis of aggregated data, the results of monitoring and on such other matters which the Environment Agency requires to demonstrate compliance with the conditions of the landfill permit or to increase its knowledge of the behaviour of waste in landfill."

7. By virtue of Regulation 32 of the 2000 Regulations, it is an offence to fail to comply with or to contravene a condition of a permit.
8. The permit issued for the respondents' Westmill II waste management facility, BK 1988, is dated 7 April 2003 and was transferred or endorsed to the respondents on 25 May 2004. Condition 2.6.8 requires the operator to provide, implement and maintain measures to prevent or otherwise control, minimise and monitor, amongst other things, "odour". The breaches alleged were of condition 2.6.12:

"There shall be no odours emitted from the Permitted Installation at levels as are likely to cause pollution to the environment or harm to human health or serious detriment to the amenity of the locality outside the Permitted Installation boundary, as perceived by an authorised officer of the Agency [Environment Agency].

An authorised officer, as defined in the Regulations, is one duly authorised by the Environment Agency.

9. Section 6 of Schedule 3 to the Permit headed "Amenity Management" describes the measures required to protect the environment against pollution which may cause harm to health or to the amenity value of the area. These give substance and detail to the requirements in Regulation 14, to which I have referred. Paragraph 6.3 provides:

" ..... Landfill gas odour monitoring and reporting will be undertaken in accordance with the methodology detailed below."

Paragraph 6.3.4 provides:

"Frequency of landfill odour monitoring

Landfill odour monitoring will be carried out a minimum of once per working week during operating hours unless a complaint is received. The monitoring will then be carried out daily for at least 5 working days from the date of the complaint."

Paragraph 6.3.5 provides:

"Landfill odour monitoring methodology

Landfill odour monitoring will be carried out around the boundary of the operational cell of the landfill and in the residential area, industrial area and Health Farm close to the landfill as these have been identified as the sensitive receptors most likely to be affected. If a complaint has been received the monitoring will also be carried out close to the origin of the complaint or the nearest receptors.

The route will be walked by the designated person or site manager to detect any landfill odour with the designated person walking slowly and breathing normally.

If landfill odour is detected while walking the intensity should be recorded as at least 3.

When landfill odour cannot be detected in this way the designated person will stand still at the monitoring point and inhale deeply facing upwind. If landfill odour is then detected, but can only be detected in this manner, the intensity should be noted as 2."

There is also provision for monitoring from a car.

10. A classification system follows that condition. It defines level 3 as -

"Moderate landfill odour (landfill odour easily detected while walking and breathing normally)."

11. Paragraph 6.3.6 provides:

"Calibration of site operative

In addition to the landfill odour monitoring carried out in Section 6.3.5, landfill gas odour monitoring will be carried out once a month by the site manager in conjunction with the designated person. This will be undertaken to calibrate the landfill odour monitoring carried out by the designated person.

The designated person will also carry out landfill odour monitoring in conjunction with the Agency Officer when a visit is undertaken and this is requested by the Agency Officer. This will be undertaken to calibrate the landfill odour monitoring carried out by the designated person and ensure consistency in landfill odour monitoring.

When dual monitoring is carried out by either the site manager or Environment Agency Officer, then individual observations shall be taken and recorded prior to any discussion being undertaken."

Classification systems for the extent of odour and the sensitivity of location are also provided.

12. Before the district judge, the appellants submitted, as recorded by the judge in his judgment, that, properly construed, condition 2.6.12 did not give the authorised officer a role which usurped that of the court. The court was not bound by the officer's opinion and it could consider all the evidence in determining whether the emission offended against condition 2.6.12. The words "as perceived by an authorised officer of the Agency" at the end of the condition protects the operator from the risk of prosecution based only on complaints by local residents about emissions.
13. Accepting the submissions of the respondents, the district judge held that the "as perceived" clause unquestionably introduced an element of subjectivity into the offence which undermined clarity and foreseeability and affected the traditional role of the court as the fact-finding tribunal. The condition is ultra vires, the judge found, because the Agency has no power to remove the fact-finding role of the court or to impose a condition that affects matters of evidence.
14. In seeking to uphold the conclusion of the district judge, Mr Croxford QC, on behalf of the respondents, submits that the last clause in the condition deprives the courts of their essential role in a criminal case of deciding the relevant facts. Objection is taken only to the "as perceived" clause. It is not suggested that the rest of the condition is invalid or ultra vires. The relevant issue before a court, hearing a charge, is simply whether the officer has honestly held the opinion expressed. If that is so, the court cannot reject his evidence. The vice, it is submitted, is in the fact that it is the officer's decision which matters. That is the sole issue for a court. Is the officer honest in expressing the opinion he does?
15. Mr Croxford refers to the difficulty of measuring odour, as compared with measuring some other forms of environmental pollution. What the condition seeks to achieve, he submits, and does so for reasons of administrative convenience, is that the officer can decide whether there has been a breach of the condition. The condition has been drafted advisedly to achieve the result it has achieved. Any difficulty there may be in measuring odour and considering at what level it becomes a nuisance does not permit the removal of the protection of a court performing its fact-finding function, it is submitted.
16. If the condition did have that effect, the case that it infringes fundamental safeguards would be a strong one. The issue was considered in the High Court in Scotland in Procurator Fiscal v Seed Crushers (Scotland) Ltd [1998] Env LR 586. The wording of the condition in issue in that case was: "All emissions to air from the process shall be free from offensive odour as perceived by an authorised officer of the Scottish Environment Protection Agency (SEPA) outside the process boundary." While the sequence of words is different, Mr Croxford accepts that the condition has the same effect as the present one. Several points were taken, including the one taken in the present case.
17. The submissions of the operator in that case are set out in detail in the judgment. I refer only to the last sentence at page 596:

"In this way, counsel argued, the drafting of the condition took the decision as to whether any breach had occurred away from the court and left it in the hands of the SEPA officials. That result would be unobjectionable if Parliament had provided for it by legislation, but it was unacceptable for SEPA to seek to achieve it by skillful drafting of the condition."

The Lord Justice General stated at page 597:

"We reject this argument also. The position might well have been different if the condition had said that a certificate by the authorised officer would be conclusive evidence that there had been an offensive odour outside the process boundary due to emissions to air from the process. In that event SEPA would in effect be seeking to set its own officer up as the final arbiter of a matter which might lie at the heart of a prosecution under section 23 (1) (a) of the Act [Environmental Protection Act 1990]. Here, however, as Sir Crispin [counsel for the operator] accepted, there was no certification procedure and a sheriff could reject the authorised officer's evidence about an offensive odour, if he thought it incredible or simply unreliable. He might even reach the view that the officer had acted so unreasonably that he had in effect failed to apply the correct approach in deciding that an odour was offensive. As the Advocate Depute argued, the condition lays down a standard which is ascertainable and it refers to the authorised officer as a way of verifying, readily but not conclusively, whether the standard has been met. It remains open to the court before which any prosecution is brought to determine whether the Crown has proved that the operators failed to meet the required standard and so carried on the process in breach of condition 2.1.3."

18. I can read that paragraph only as accepting, and indeed insisting, that the normal fact-finding role of the court is preserved when deciding a case under the condition. The Lord Justice General stated that the court may reject evidence of an officer if it is simply unreliable. Other bases on which it might be rejected are added.
19. Secondly, the paragraph concludes with the judge stating that it remains open for the court to determine whether the Crown has proved that the operators have failed to meet the required standard.
20. I respectfully agree with the conclusions of the Lord Justice General in those circumstances, which are the same circumstances as in the present case.
21. Seed Crushers has been cited in this jurisdiction in R (On the application of United Kingdom Renderers Association Ltd) v Secretary of State for the Environment, Transport and the Regions [2002] Env LR 21. The issue in that case was whether a Departmental Guidance Note, which authorised a condition which would make it an offence for offensive odours to be perceived by a local authority officer beyond the process site boundary, unless it could be shown that all due diligence had been used and all reasonable steps taken to prevent the escape of odour, was unlawful guidance.
22. Mr Justice Ouseley considered the submission also made in the present case. He stated at paragraph 89:

"Of course issues may be raised in criminal proceedings about the undue sensitivity or sensitisation of local inspectors or as to differing standards as to what is 'offensive', or indeed as to whether a prosecution had been influenced by local pressure. But in principle, it is not irrational for a court to be able to receive and rely on the evidence of an insepctor that he smelt a smell and that it smelled horrible. He may be untruthful, he may be unreliable, he may be unduly sensitive, but courts are not unaccustomed to dealing with that sort of issue. The offensive escape has to be proved before the question of due diligence and reasonable steps arises."

Mr Justice Ouseley then cited the passage from Seed Crushers set out above and stated:

"I accept the force of that conclusion and adopt it in rejecting this part of the subjectivity argument."

23. Mr Justice Ouseley did refer to a further point made in Seed Crushers. It is one that bears upon the argument of the appellant before the district judge in the present case that the reference to the agency officer in condition 2.6.12 is a protection for the operator. The Lord Justice General had stated:

"The respondents can - and indeed must - themselves check to see whether the emissions from the process are free from odour outside the boundary. By specifying that only a SEPA official can determine that there has been a breach, SEPA have narrowed the condition and have made its operation more certain and predictable, thus providing a substantial safeguard for the operators."

Mr Justice Ouseley adopted that conclusion. In the result, Mr Justice Ouseley held at paragraph 96:

"I cannot accordingly conclude that an odour boundary condition, framed by reference to the perception of a local authority enforcement officer, would be irrational or unlawful."

24. The case went to the Court of Appeal. That conclusion of Mr Justice Ouseley was upheld but the court did not consider the present issue.
25. I do not accept the submission that condition 2.6.12 was ultra vires or that it requires the court to convict upon honest evidence from an officer of the agency. I construe the closing words of the condition as requiring evidence relevant to the requirements of the condition from an authorised officer of the agency as a necessary ingredient in the case. It is a requirement that is likely to be a safeguard for operators against irresponsible prosecutions. It does not limit the jurisdiction of the court to decide, on the basis of all the evidence presented to it, whether odours had been emitted at levels which offend against the standards and conditions.
26. Construed in that way, the condition does not offend against principles required by the criminal law. In the absence of apparatus able to assess the level of odours, the fact-finding exercise may be a difficult one but it is one which the court is entitled and required to make on the basis of the evidence presented. A different wording would have been used had it been intended to take the drastic step of excluding the court's fact-finding function when an offence is alleged, and the closing words of the condition do not have that effect.
27. I have set out the required monitoring methodology in detail because it demonstrates, first, the extent of the operator's duty to monitor and, secondly, the close co-operation contemplated between the operator and the officers of the Environment Agency in achieving environmental protection. The procedure provided does not support a construction of 2.6.12 which gives the first and last word in determining whether a breach of condition has occurred to the officer of the Agency. His opinion provides the necessary starting point for a prosecution and is likely to be treated by a court as important evidence. The power and duty of the court to perform its usual function of making a judgment on the basis of all the evidence before it is not affected.
28. I would answer the question posed by the district judge by stating that condition 2.6.12 of permit number BC 1988 is neither invalid nor ultra vires. I would allow the appeal and hear submissions as to whether further relief should be granted.
29. MR JUSTICE TUGENDHAT: I agree.
30. MR CROXFORD: May I mention something before that. Your Lordship referred to the court deciding the case on all the evidence before it. I am not trying to be rude for one moment, but I think you have indicated that the test for the court will be the usual one which, in this case, will then have two limbs: to prove the emission - - - - -
31. LORD JUSTICE PILL: I am not prepared to elaborate.
32. MR CROXFORD: Your Lordship used the expression "on the basis of all the evidence - - - - -
33. LORD JUSTICE PILL: Yes.
34. MR CROXFORD: - - - - - before it." I was uncertain whether you were intending to shift away from the burden being on the prosecution or merely to re-state the ordinary position that in the ordinary course the prosecution - - - - -
35. LORD JUSTICE PILL: My judgment stands.
36. MR CROXFORD: So be it.
37. LORD JUSTICE PILL: I am sure you are trying to be helpful, but I am not prepared to elaborate on that.
38. MR CROXFORD: I was trying to be helpful. So be it, there is nothing further I can say.
39. LORD JUSTICE PILL: Are there any applications?
40. MR HARRIS: Would your Lordships consider directing the matter to be remitted to the Magistrates' Court and the district judge to hear the summonses?
41. LORD JUSTICE PILL: Mr Croxford?
42. MR CROXFORD: In the ordinary course that would be an application that would be very difficult to resist. Could I ask you to look at a paragraph in the materials before the district judge which has not been referred to today. It is central to what was before the district judge and the position that my clients faced; it is page 25. This is in the prosecution case summary, paragraph 13. The description is there given as to charge 1 which is the relevant charge here. In contradistinction, at the end is charge 2 which was not depended upon on perception. It goes to the point which I know your Lordship has found and relied upon, that passage in the judgment (page 59). It goes to the point as to the way the case was in fact advanced below which is reflected also in the ruling in the case - page 10, paragraphs 12 (v) and 12 (f) of the case stated itself. The way in which this case was put was very particular and, with the greatest respect, not in accordance with the ruling of this court. I did not understand Mr Harris to be putting it that way.
43. My observation is that in circumstances where my client has come to court in order to fight the case once, has fought it on the basis on which the prosecution then chose to put its case, it has come here and your Lordships have disposed of the case on a footing which was not that before the district judge.
44. LORD JUSTICE PILL: Why did the district judge not spell it out?
45. MR CROXFORD: He did, with respect. If you go to page 59, turn to page 60, he did spell it out. Your Lordship, with respect, ought not to treat the judgment of the judge as if it were a statute. When one turns over the page and finds that the district judge was reflecting at the top paragraph, just over half-way down:

"The judgement of the authorised officer therefore affords the 'best evidence' so to speak ..... "

and so on. What he was doing was, in his own words, explaining what had been put before him. What had been put before him both by that case summary and sections of the written submissions from Mr Banwell that I showed you earlier, in particular paragraph 17 was it, and indeed the way Mr Harris puts it here was that he was not grappling with the case on the basis of the way you have just disposed of it.

46. In those circumstances I would respectfully say that we having gone to court once to fight the case, put very clearly as it was, we should not now be sent back to fight the case simply because you have given the prosecutor the opportunity to put his case in a different way. It is very clear from that passage at page 55 that I have just shown you on the summary of the case precisely how that case was being put and we would then be in a position of the prosecutor having a second bite of the cherry, not upon the case that was actually put but on a case that has emerged during the course of today and that would be unfair.
47. LORD JUSTICE PILL: I am not clear on your point on page 60. Are you saying that page 60 reverses page 59?
48. MR CROXFORD: I am saying it goes to explain rather more what it was that the district judge was looking at. That paragraph:

"The supposition ..... Mr Banwell denies this and submits that reliance on the subjective perception of the authorised officer does not make the condition inherently uncertain. Practically, determination of whether emissions reach a level which contravene the condition would be difficult to measure in empirical terms, given the wide - - - - - "

49. LORD JUSTICE PILL: That is your other point which you say - - - - -
50. MR CROXFORD: That is the other point, but if you just allow me to finish. Then he said, after one gets over that:

"The judgement of the authorised officer therefore affords the 'best evidence' so to speak."

51. LORD JUSTICE PILL: "So to speak".
52. MR CROXFORD: Yes. What the district judge was doing was paraphrasing, in the course of this ruling, the arguments which had clearly been put before him. Those arguments put by the prosecutor were that this was a case which, subject to the Seed Crushers review-type restrictions - - - - -
53. LORD JUSTICE PILL: You are re-arguing the case - - - - -
54. MR CROXFORD: I am not intending to.
55. LORD JUSTICE PILL: - - - - - that is offensive.
56. MR CROXFORD: In that case, I am sorry, my Lord, I did not intend to.
57. LORD JUSTICE PILL: Having heard the judgment and the argument, you say Seed Crushers is a judicial review case; that is offensive.
58. MR CROXFORD: I apologise. It is not what I intended. The sole point that I was seeking to make is that if one looks at page 60 and looks at paragraph 13 or paragraph 17 of Mr Banwell's written submissions (and you will find it at page 43), you will see the way the case was dealt with below. I take objection to the prosecutor having a second bite of the cherry.
59. LORD JUSTICE PILL: Yes, I agree you may have a good point; it is the way you are putting it. How was it put below?
60. MR CROXFORD: It was put precisely that subject only to the restriction of Seed Crushers, the prosecutor had to prove that the officer had formed the opinion that there had been emissions which led to pollution.
61. LORD JUSTICE PILL: Which paragraph is that?
62. MR CROXFORD: You will see it at paragraph 13 of the case summary - page 55 - the opening part dealing with the first alternative (paragraph 13). You see the contradistinction in charge 2, the ones that were not proceeded with. It is not dependent upon the perception of an authorised officer whereas charge 1 was. Page 43 - paragraph 17 - explaining the status there; in the findings of the district judge (paragraph 12-page 10 sub-paragraphs (e) and (f) as to his findings) and lastly I think - - - - -
63. LORD JUSTICE PILL: That is the ruling.
64. MR CROXFORD: It is. If you go back to page 6 and see sub-paragraph (f) in the description of Mr Banwell's submission, beginning, "The condition did not usurp ..... "
65. LORD JUSTICE PILL: Where?
66. MR CROXFORD: Page 6 in the case stated where the judge was dealing with the Environment Agency's arguments and the limited role which was there conceded for the court.
67. LORD JUSTICE PILL: It is not necessarily conclusive that the court could reject that evidence.
68. MR CROXFORD: Echoing Seed Crushers approach.
69. LORD JUSTICE PILL: Yes, which I too have echoed.
70. MR CROXFORD: Of course. The manner in which your Lordship has echoed them, and the basis I have just shown you, the case summary and the skeleton argument put before the court, is not the basis upon which it was argued before the district judge.
71. LORD JUSTICE PILL: Thank you. Is there anything further? What do you say, Mr Harris?
72. MR HARRIS: If and to the extent that the case is based on your Lordship's judgment, it is a problem which is regularly in front of the criminal courts, that at the outset of the proceedings if submissions are made as to certain aspects of the prosecution's case which requires an amendment in any way, shape or form to the way in which the Crown's case is to be put, if that amendment requires that the defence have a further opportunity to prepare their case to reflect the amendment that time is afforded. The position here is that this matter was dealt with solely by way of argument of law. There has been no material consideration of the evidence in the case. The defendants are in no way prejudiced in my submission, having to meet a case based upon the judgment that your Lordships have given this afternoon.
73. LORD JUSTICE PILL: So we only retire once, are there any other applications.
74. MR HARRIS: I would seek the Environment Agency's costs.
75. MR CROXFORD: May I reply shortly on the last point?
76. LORD JUSTICE PILL: Yes.
77. MR CROXFORD: I do not rely on prejudice. I simply say that the prosecution having decided to put its case one way and lost should not be allowed a free hand to go a second time. As far as costs are concerned, I invite you to say that the Environment Agency should not have their costs for the reason I have just indicated. They have been successful insofar as they have on this appeal on a new ground. I invite you to consider whether we should have our costs out of central funds. You have discretion, as I understand it, under the Costs in Criminal Cases Act for a defendant in the final disposal of the case before this court. They should not have their costs. I invite you to say we should have ours. At worst, it should be a no score draw. There is nothing else I can say.
78. LORD JUSTICE PILL: We will retire.

(The Bench retired)

79. LORD JUSTICE PILL: The court having allowed the appeal of the Environment Agency and answered the question posed in a way favourable to them, Mr Harris submits that the district judge should be directed to proceed with hearing the informations. For the respondents, Mr Croxford has submitted that the Agency should not be allowed a second bite of the cherry, that having put the case in one way before the district judge they should not, now that the court has answered the question in the way it has, be permitted to put the case in a different way. We do not accept that the case needs to be put in a different way.
80. We have had regard, and it is cited in my judgment, to the passage at paragraph 59 of the district judge's judgment which says how the case was put; in substance, in the same way as this court has found to be accurate. We do not find the raising of further points, including the reference to "best evidence" at page 60, detracts from the way in which the case was put. When the district judge at the Magistrates' Court was summarising how the case was put at page 6 of the bundle - 7 (f) - he referred to Procurator Fiscal v Seed Crushers (Scotland), a case which has been followed by the decision of this court, and, whatever else may have been said, the summary in this respect of the appellants' case was that the verification of the Environment Agency officer was "such verification was not necessarily conclusive" - the court could reject it. There are nuances, as there often are, when cases go to a higher court. That is a common feature at all levels.
81. We are not prepared to say that there is any injustice or abuse whatever in the Agency being permitted to proceed with their case in the Magistrates' Court. What course they take, having regard to the lapse of time, is for them.
82. Mr Harris has asked for his costs. Mr Croxford submits that his client should have the costs because the case has been put in a different way. The Agency have been successful and, in our judgment, they are entitled to the costs of the appeal. The question has been answered. The question was, with respect, a clear, straightforward and apt one. It has been answered in favour of the Agency. Thank you both for your submissions.
83. MR CROXFORD: In the light of that, may I mention one other matter which I do not ask you to rule on at the moment. I ask with some trepidation because I have probably said too much already unintentionally.
84. LORD JUSTICE PILL: Not at all.
85. MR CROXFORD: Obviously we will want to consider very closely your Lordships' judgment in the coming hours. It may be that we might come and trouble you, if we think it appropriate, if we formulate an appropriate question having read and better understood your judgment. We might at some point by the end of the week, if your Lordships are sitting together, if necessary, come back with a point we would ask you to certify.
86. LORD JUSTICE PILL: I am not going to stop you doing that. If it is to be done - it is entirely a matter for you - then the sooner the better.