Plymouth City Airport Ltd. v. Secretary of State for the Environment, Transport and Regions

Transcript date:

Thursday, February 3, 2000

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Dyson J

IN THE HIGH COURT OF JUSTICE CO/812/99

QUEEN'S BENCH DIVISION

(CROWN OFFICE LIST)

Royal Courts of Justice

Strand

London WC2

Thursday, 3rd February 2000

B e f o r e:

MR JUSTICE DYSON

- - - - - - -

PLYMOUTH CITY AIRPORT LIMITED

-v-

SECRETARY OF STATE FOR THE ENVIRONMENT,

TRANSPORT AND THE REGIONS

- - - - - -

(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Telephone No: 0171-421 4040/0171-404 1400

Fax No: 0171-831 8838

Official Shorthand Writers to the Court)

- - - - - -

LORD KINGSLAND QC (instructed by Foot & Bowen, Plymouth, Devon PL1 2SW) appeared on behalf of the Applicant.

MISS N LIEVEN (instructed by The Treasury Solicitor) appeared on behalf of the Respondent.

MR R JAY QC (instructed by the Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the proposed Intervener.

J U D G M E N T

(As Approved)

MR JUSTICE DYSON: Plymouth City Airport Limited (PCAL) is the operator and leasehold owner of Plymouth City Airport ("the airport"). For the purposes of Part I of the Land Compensation Act 1973, PCAL is the "responsible authority" in relation to the airport and therefore liable to pay any valid claims for compensation under that legislation.

On 11th November 1996 the Secretary of State for Transport issued a certificate, purportedly pursuant to section 15(2) of the Act, which stated, inter alia, that certain works carried out at the airport constituted "apron alterations" within the meaning of section 9. A section 15 certificate is directly relevant to establishing one of the components of a claim for compensation under Part 1 of the Act.

In proceedings for judicial review initiated by PCAL, a consent order was made by the High Court on 22nd August 1997 quashing the certificate dated 11th November 1996. The ground for making that order was that the Secretary of State had acted unfairly and/or in breach of the rules of natural justice.

The functions of the Secretary of State for Transport under section 15 of the Act are now vested in the Secretary of State for the Environment, Transport and the Regions, who considered whether a fresh certificate should be issued certifying that the works constituted apron alterations. The Secretary of State issued a fresh certificate on 15th December 1998. The certificate was attached to a letter of the same date in which the Secretary of State explained his reasons for its issue. Those reasons lie at the heart of this application.

PCAL challenge that certificate on a number of grounds to which I shall come shortly. On 18th March 1999 Latham J granted PCAL permission to challenge the certificate by way of judicial review.

On 24th March 1999 PCAL's solicitors, served the court bundle on Mr Thomas as a person directly affected by the application within the meaning of Ord 53 r. 5(3).

Mr Thomas and his wife owned No 6, Blue Haze Close, Glenholt, Plymouth between 19th November 1988 and 12th August 1997. The property is in a development close to the airport. It has been blighted by aircraft noise and movement, including noise nuisance emanating from helicopter flights. Mr and Mrs Thomas felt constrained to sell their house at an undervalue and, along with others in a similar position, have claimed compensation under the 1973 Act.

In the expectation that he would do so robustly, Mr Thomas was content to leave the defence of the Certificate to the Treasury Solicitor. However, on 21st October Mr Thomas learned from the Treasury Solicitor that the Secretary of State was prepared to consent to a quashing of the Certificate of 15th September 1998. A draft Consent Order was sent to Mr Thomas under cover of a letter of 7th September 1999.

The works.

The area to which the application for the issue of the Certificate relates is shown on a plan which is included in the papers before me and coloured red. In August 1995, two helicopters from the Royal Navy's Flag Officer Sea Training Establishment (FOST) were relocated from RNAS Portland to the airport. The Red Land was then used for the parking of these two helicopters. It comprised about 0.229 hectares.

Before the arrival of the helicopters, the same area had been used for many years for the parking of up to six fixed wing aircraft owned by Plymouth School of Flying. Those aircraft have been relocated elsewhere within the airport. In order to support the helicopters, the red land, which previously had a grass surface, was re-graded and covered with a metalled surface. It is these works which are the subject of the Secretary of State's certificate of 15th December 1998.

After 6th January 1997, the metalled surface ceased to be used by the helicopters. They were relocated to runway 06/24 which, until July 1987, was the airport's main runway. In July 1987, a new runway, 13/31, was commissioned which, being of a higher operational status than 06/24, allowed 06/24 to be used for the parking of aircraft.

The statutory provisions.

So far as material, the 1973 Act provides as follows:

"This section has effect where, whether before, on or after the commencement date...

(b) any public works other than a highway have been reconstructed, extended or otherwisealtered after they have been first used; or...

(2) If and so far as a claim in respect of the highway or other public works relates to depreciation that would not have been caused but for the alterations or change of use, this Part of this Act shall, subject to subsection (3) below, have effect in relation to the claim...

(3) Subsection (2) above shall not by virtue of any alterations to an aerodrome apply to a claim in respect of physical factors caused by aircraft unless the alterations are runway or apron alterations...

(6) In this session ‘runway or apron alterations' means-...

(b) a substantial addition to, or alteration of, a taxiway or apron, being an additionor alteration whose purpose or mainpurpose is the provision of facilities for a greater number of aircraft.

15(2) A certificate by the Secretary of State stating that runway or apron alterations have or have not been carried out at an aerodrome and the date on which an aerodrome at which any such alterations have been carried out was first used after completion of the alterations shall be conclusive evidence of the facts stated."

Analysis of the Secretary of State's letter of 15th December 1998.

At paragraph 5, the Secretary of State referred to section 9(6)(b) of the Act and said that he had considered whether the development (a) was a substantial addition/alteration, and (b) had as its purpose or main purpose the provision of facilities for a greater number of aircraft. No criticism is made of this paragraph. He started by considering the second of these issues and said at paragraph 6:

"In our view, one of the factors in deciding whether the Ministry of Defence helicopter area was an alteration whose purpose or main purpose is the provision of facilities for a greater number of aircraft, is whether the helicopters would have moved on to the site had the works not been undertaken. If the aircraft would have moved to the airport whether or not the hardstanding was put in place, the work would not have made a difference to the number of aircraft able to use the airport even if the helicopters had arrived after the resurfacing work had been undertaken and then used it. If, however, the work was a prerequisite to the helicopters using the airport, it must be the case that the purpose of the work was to provide facilities for a greater number of aircraft."

No criticism is made by Lord Kingsland QC of paragraph 6. At paragraph 7, the Secretary of State said that the correspondence from the MOD was important in determining whether the helicopters would or would not have been located at Plymouth had the work not been undertaken. He went on to say that it appeared from certain evidence that a hardstanding area was necessary for the helicopters to operate from the airport. No complaint is made about that finding.

At paragraph 9 he said:

"The Airport's claim that there were other, equally suitable places for the helicopter to use does not appear to be supported."

The possible places were runway 06/24 and the four "designated helicopter areas".

At paragraph 10, he dealt with runway 06/24 in these terms:

"Whilst the helicopters could have operated from the runway, it appears that this was not considered suitable at the time for ‘safety and environmental reasons' (Foot and Bowden's letter of 19 October 1998). This is supported by MOD's letter of 26th October 1998. Also, as MOD point out (point 1, letter of 26 October), to use the runway would have, in their opinion, reduced the (operating) capability of the Airport; it follows that part of the purpose of constructing the hardstanding area was to increase the capacity of the airport by allowing helicopters to use the airport in addition to the aircraft using the runway."

One of the principal grounds of challenge centres on this paragraph.

At paragraph 11, he rejected PCAL's arguments based on the four designated areas. No criticism has been directed at this paragraph. At paragraph 12, the Secretary of State summarised his conclusion on this part of the case as follows:

"It therefore seems to be the case that the evidence points to the fact that a hardstanding area was required for the use of the FOST helicopters for safety and operational reasons, and this implies that, unless the works had been undertaken, the helicopters would or could not have been relocated to Plymouth."

He then went on to address the question of whether there was a substantial addition or alteration. At paragraph 14 he said:

"The 1973 Act is silent on the interpretation of the term ‘substantial', so it is a question of considering the everyday meaning of the term. Mr Osbourne (in his letter of 22 October 1998) refers to the fact that the area covers 0.295 hectares and involved a motorway-style excavator. The department takes the view that the development was substantial since it was a completely new development within the airport, had an area of 0.295 hectares, involving laying metal plates on a prepared base, was supported by three portable single-storey accommodation units and finally because the helicopter landing area was used for the frequent landing and taking off of helicopters."

The grounds of challenge

On behalf of PCAL, it is submitted that the Secretary of State erred in that:

(a) in applying the approach identified at paragraph 6 of the decision letter, he misconstrued a letter from PCAL's solicitors dated 19th October 1998, and a letter dated 26th October 1998 from the MOD as showing that the two helicopters were unable to use runway 06/24 and that the runway was an unsuitable location;

(b) he failed to take into account a material consideration, namely the fact that the helicopters had continuously used runway 06/24 since January 1997 without there being any safety or environmental constraints, and without any reduction in the capacity of the airport;

(c) he failed to take into account the fact that the MOD letter dated 26th October 1998 was qualified by a subsequent letter of 17th November 1998;

(d) he made material errors in paragraph 14 of the decision letter in relation to the issue of substantial alteration; and

(e) there was a breach of the rules of natural justice in that the Secretary of State took into account the contents of the letter dated 22nd October 1998 from a Mr Osbourne, without giving PCAL the opportunity to make representations about it.

By signing a consent order in these proceedings, the Secretary of State has indicated that he accepts that his decision was flawed in respects (a) and (b). I have received no submissions orally or in writing from him on any of the five points. He was content that his view that the certificate should be quashed on grounds (a) and (b) would be sufficiently represented by Lord Kingsland, as I am sure it has been.

Mr Jay QC has appeared on behalf of Mr Thomas and has made submissions in opposition to PCAL's application for judicial review. I am grateful to both counsel for their helpful submissions.

Ground 1: paragraph 10 of the decision letter.

It is necessary first to examine the relevant parts of the two letters which it is said that the Secretary of State misconstrued. They were both written in response to a letter from the Secretary of State which asked a number of questions. These included the question:

"Why did FOST not make use of Runway 06/24 for their operations in the first place?"

In their letter of 19th October, PCAL's solicitors replied:

"Plymouth City Airport Limited (PCAL) required the helicopters to operate from the helicopter pad area for safety and environmental reasons. PCAL's position is set out in paragraph 4.4 of its submissions to the DETR which includes reference to the report of the Plymouth City Council when it was considering the proposal by FOST to begin its operation from the Airport. With reference to environmental reasons, you should know that by using 06/24 the helicopter operations take place at a location which is nearer residential properties (including that occupied by Mr Osbourne) than if they were operated from the helicopter pad. Reference to safety reasons in submissions and earlier correspondence relate to the relocation of the fixed wing aircraft which were originally stationed where the helicopter pad was subsequently constructed so that there was no conflict between fixed wing aircraft and rotary aircraft. The construction of the pad had nothing whatsoever to do with the capacity of the Airport."

In its letter dated 26th October, MOD said at page 78:

"Operating from a runway is always the last option. It reduces the capability of the airport (only one landing surface instead of two) and it forces the FOST staff, often dressed in heavyweight, rubberised suits to walk across an operating airfield with all the attendant dangers which are even more hazardous at night. Additionally, our normal helicopter activities include rotors running refuel; reload of passengers and starting/stopping engines. At runway 06/24, the aircraft is considerably closer to the residential Tavistock Road than it would be at other locations within PCA."

It will be convenient at this stage to refer to the subsequent letter from the MOD dated 27th November, which included the following:

"In answer to the first of Roger Kinsey's questions Why did FOST not make use of runway 06/24 for their operation in the first place?

I opined that using a runway would reduce the capability of the airport. It now occurs to me that this may or may not be correct in a theoretical and absolute sense but the Plymouth City Airport authorities are, of course, the only ones qualified to advise up on the capacity, capability and operation of the airport. I am therefore sending a copy of this letter to the Chief Executive of Plymouth City Airport."

Lord Kingsland submits that, contrary to paragraph 10 of the Secretary of State's decision letter, the letter of 19th October 1998 did not say that runway 06/24 could not be used on account of environmental concerns. It merely stated that the works area affected fewer properties and had a more positive effect on local amenity. This situation (he argues) is wholly consistent with 06/24 being an acceptable site in the absence of the works. As regards safety grounds, Lord Kingsland submits that, contrary to paragraph 10, the letter of 19th October did not say that runway 06/24 was unsuitable for the parking of FOST helicopters on safety grounds.

As for the MOD letter of 26th October, it accepted that the runway was an "option", albeit a last resort. This letter was, therefore, consistent with the helicopters moving to the airport even if the works had not been carried out. Accordingly, it would be wrong to say, as the Secretary of State did say, that the letter supported his construction of the letter of 19th October.

I cannot accept that the Secretary of State misinterpreted the letter. Mr Jay submits that the test applied by the Secretary of State at paragraph 6 of the decision letter was unduly generous to PCAL. I do not find it necessary to decide whether Mr Jay is right as to that. I propose to consider the criticisms made of the decision on the basis that, in asking himself whether the helicopters would have operated from the runway if the works had not been carried out, he set for himself the correct test.

In my view, the statement that, whilst the helicopters could have operated from runway 06/24, it appeared that this was not considered suitable at the time for safety and environmental reasons was a fair and proper conclusion to draw from the letter of 19th October. The letter did not say that helicopters could not use the runway, nor did the Secretary of State so interpret it. It did say that the reason why the runway was not used was that PCAL had required it not to be used on safety and environmental grounds. The context of paragraph 10 was that it was the Secretary of State's response to the claim made by PCAL that runway 06/24 was one of a number of other equally suitable places for the helicopters to use. It was in order to test that claim that the Secretary of State had asked the question ‘why did FOST not make use of runway 06/24 for their operations in the first place?' The answer given by PCAL, in summary, was that it was not suitable. Nowhere in this letter did PCAL say that runway 06/24 was a suitable location for the helicopter operations, or that, if the helicopter pad had not been built, they would have used the runway. Indeed, such assertions would have been inconsistent with the opening sentence that PCAL required the helicopters to operate from the pad area for safety and environmental reasons.

The letter of 19th October clearly spelt out that the environmental reasons which made runway 06/24 unsuitable were the fact that, if the runway was used for helicopter operations, these would be nearer to residential properties than if the helicopter pad was used. The letter is less clear as to the safety reasons. But two things are plain about safety: first, the letter stated unequivocally that PCAL had required the helicopters to operate from the pad for safety as well as environmental reasons. Secondly, the MOD letter of 26th October gave detailed and coherent safety reasons for not using any runway for helicopter operations. Those reasons were not the subject of any further comment in the MOD letter dated 27th November.

In my judgment, the Secretary of State did not misconstrue the MOD letter October of 26th October. He was right to say that this letter inter alia provided support for the statement that the runway was not considered suitable for safety and environmental reasons.

Ground 2: use of runway 06/24 since January 1997

Lord Kingsland submits that this was plainly a material consideration which should have been taken into account by the Secretary of State in deciding whether or not the helicopters would have been located at runway 06/24 18 months earlier had the works not been carried out at that time.

It is not in dispute that the Secretary of State did not have regard to this factor when deciding whether to issue the certificate.

Mr Jay submits first that what happened in January 1997 is legally irrelevant to the question of what the purpose of PCAL was at the time in carrying out the works. I agree. The Secretary of State was correct in considering the position as it was, and as it was perceived to be, at the time when the works were carried out. He was right to ask why use was not made of the runway "in the first place", and to express his conclusion on the suitability of the runway on the basis of how it was considered to be "at the time" (paragraph 10 of his decision letter). If PCAL required the helicopters to operate from the pad area at the time, how can it be relevant that 18 months later they decided to base the helicopters on the runway?

Mr Jay also submits that the real reason why PCAL has used the runway since January 1997 is not because they consider it to be suitable, but in order to improve their position in meeting claims for compensation by persons such as Mr Thomas. I am satisfied on the material that has been placed before me that this is so. I refer in particular to the minutes of the meeting of the Airport Consultative Committee dated 11th December 1996. These show that PCAL were proposing at that time to move the helicopters from the pad to the runway because of the compensation claims. The minutes include the following:

"Cllr Fox said he was appalled at the movement of the FOST operation to within 50 metres of the Tavistock Road houses and asked if it had been done as a punishment. Mr Humphrey (he was the airport director) responded that it had been done under threat of land compensation claims and although he did not wish to move the helicopters, he could not wait for Land Compensation Claims to be brought against the Airport and therefore FOST had to cease using the helipad. He added that those who initiated the certificate of works had got what they wanted."

A letter dated 30th December 1998 from the local authority to a Mr Teverson states that the legal advice from PCAL's solicitors was that they "should not permit resumption of use of the pad until the various compensation claims are determined."

If, contrary to my view, the subsequent use of the runway is a potentially material consideration, I would nevertheless refuse to grant relief to PCAL on this ground. I am satisfied that, once the true reason for the use of the runway had been exposed to the Secretary of State, then even if he had taken it into account, it would not have led him to reach a different conclusion.

Ground 3: the MOD letter of 17th November 1998.

It is submitted on behalf of PCAL that the Secretary of State took into account the MOD letter of 26th October without also taking into account the qualification contained in the subsequent letter of 27th November. The later letter made it clear that the MOD were doing no more than making a statement about runways generally, and not the particular situation at Plymouth.

The later MOD letter was sent by the Secretary of State to PCAL for comment. I understand that PCAL did not comment on it, notwithstanding that MOD said in their letter that the Plymouth Airport Authorities were the only ones qualified to advise on the capacity, capability and operation of the airport. That was obviously true. The Secretary of State was entitled to take the view that, in the absence of any comment from PCAL, it was reasonable to conclude that the use of runway 06/24 for the helicopters would have reduced the capacity of the airport, and the number of aircraft able to use the runway.

Even if the Secretary of State was in error in failing to have regard to the letter of 27th November, I am satisfied that this was an immaterial omission. Although the Secretary of State stated at paragraph 10 that part of the purpose of constructing the hardstanding area was to increase the capacity of the airport, it is clear that he would have reached the same decision even if no reference had been made to capacity by the MOD. This is because the Secretary of State was satisfied that the works were required for safety and environmental reasons in any event. That was a sufficient reason for concluding that the helicopters would not have been moved to the airport at the time when they were moved if the works had not been carried out.

Ground 4: paragraph 14 of decision letter.

Lord Kingsland submits that the Secretary of State merely considered whether the works were "substantial" in absolute terms. He did not consider whether they were substantial in the context of the existing taxiway or apron. In other words, he did not consider the works in relative terms having regard to the relationship between the works and the pre-existing state of affairs. The statute speaks of a "substantial addition to, or alteration of, a taxiway or apron". It is true that in the text of paragraph 14, the Secretary of State refers simply to the "development" as being substantial. But the heading with which paragraph 14 is introduced reads "substantial addition or alteration", and at paragraph 5 the Secretary of State asked himself whether the development was a "substantial addition/alteration". I am in no doubt that he was aware that he was concerned with the question whether the works amounted to a substantial addition to or alteration of a taxiway of apron. In deciding that question, he would inevitably have to consider the impact of the works on the existing state of affairs. It is very difficult to envisage a development which, in fact, amounts to an addition or alteration to an existing taxiway or apron which may properly be described as a "substantial development", and yet which would not by the same token properly be described as a "substantial, addition or alteration to the existing taxiway or apron". In my judgment, there is no substance in this criticism of the Secretary of State's letter.

Ground 5: breach of natural justice.

The complaint here is that at paragraph 14, the Secretary of State refers to a letter dated 22nd October 1998 from Mr Osbourne which refers to the fact that the area of the works covered 0.295 hectares and involved a "motorway style excavator". It seems reasonable to assume than the Secretary of State took this letter into account in arriving at his conclusion on the issue of substantiality. He did not give PCAL the opportunity to make representations on the letter before reaching his final conclusion. In my judgment, it is clear that the Secretary of State erred in this respect. This error is all the more surprising in view of the fact that the first certificate was quashed on the grounds of a breach of natural justice.

Mr Jones, PCAL's solicitor, deals with this issue at paragraph 6.6 of his affidavit. His main point is that Mr Osbourne described the excavating machine used in the works as a "motorway style excavator" which it seems was accepted and adopted by the Secretary of State. PCAL say that the excavation was in fact carried out by a JCB digger of the type ordinarily used on building sites. Although the Secretary of State refers to the type of excavator used, it is very difficult to see how the substantiality of the works could be determined by whether the excavation was undertaken by a motorway style excavator, a JCB digger, or even by hand. The scale and scope of the excavation may well be relevant, but why should the nature of the equipment used be material?

The points which the Secretary of State mentioned as having informed his view that the works were substantial, were the fact that (1) this was a completely new development within the airport, (2) it has an area of 0.295 hectares, (3) they involved laying metal plates on a prepared base, (4) was supported by three portacabin, single-storey accommodation units, and (5) the helicopter landing area was used for frequent landing and taking off of helicopters. As I understand it, none of these five points was derived or derived exclusively from Mr Osbourne's letter.

The second point mentioned by Mr Jones relates to notes of a meeting of 25th October 1995 sent by Mr Osbourne under cover of his letter of 22nd October. Those notes dealt with the question whether an area of hardstanding was necessary. As to that, there was no issue. Mr Jones states, however, that if the opportunity had been available, PCAL would have wished to have put the Secretary of State's reliance on the notes of the meeting of 25th October in context, by saying that the site of the helicopter pad was not the only area available to support the two FOST helicopters. But as Mr Jay points out, and as the Secretary of State recorded at paragraph 9 of the letter, PCAL did make that submission to the Secretary of State in any event.

Although I consider that it is regrettable that the Osbourne letter was not made available to PCAL, I am satisfied that no unfairness has resulted. Any representations made by PCAL in response to the letter would have made no difference to the Secretary of State's decision.

Conclusion

In the result, all five grounds of challenge fail and this application must be dismissed.

MR JAY: My Lord, I am obliged to your Lordship. I am instructed to ask for costs against PCAL, given that this case was listed for less than a day. A schedule of costs has been prepared. May I hand it up to your Lordship. My Lord, the first Schedule A was the costs until close of play yesterday, which my learned friend has seen. Schedule B takes into account today's costs. My Lord, I understand the only issue is as to my instructing solicitor's charge out rate. Your Lordship might like to look at the way this is broken down.

MR JUSTICE DYSON: The only issue is as to the rate.

LORD KINGSLAND: No, just the rate. My Lord, as I understand it, the solicitor is located in Cambridge where the rate is £125. I believe £170 is more akin to the London rate.

MR JAY: My Lord, my instructing solicitor has shown me, and I will happily show my learned friend, Chambers Latest Survey on Costs. My Lord, for the East Anglia Area (which must include Cambridge) looking at commercial litigation which, in my submission, this is, the lowest rate is £160 an hour. The average rate is £173 an hour and the highest rate is £180 an hour. It was that which prompted my instructing solicitors to agree the rate of £170 an hour with my clients. This is not unreasonable.

My Lord, there is an extra point. This deals with costs on a standard basis and not on an indemnity basis. Your Lordship has made a finding in relation to the movement of the helicopters after 6th January 1997. I ask your Lordship to bear in mind the terms of Mr Jones' affidavit, paragraph 6.10, particularly the part at page 16 of the core bundle.

MR JUSTICE DYSON: Paragraph 6.10?

MR JAY: That is where Mr Jones is dealing with 6th January 1997 point. Five lines down, page 16:

"Moreover, no reference is made in the decision letter to the fact that the helicopters have in fact been using runway 06/24 since January 1997 and are in fact continuing to do so without being the subject of any safety or environmental constraints..."

My Lord, if the true reason for moving the helicopters was, as your Lordship found, to improve the airport authorities position, vis-a-vis my client's claim, and indeed other persons in his position, this affidavit, in my respectful submission, is unfortunately worded, to put it at its lowest. My Lord, the point is only relevant to this extent: Mr Richard Gordon QC advised in the middle of January, but not available to do the hearing. Hence, I am here. His fee would be in the region of £750 for his advice. That fee has not been included in this Schedule since, on a standard basis of costs, it would not be allowed on taxation but on an indemnity basis it would be allowed. Therefore, to support Mr Richard Gordon, I find myself in a slightly amusing position but, in doing so, nonetheless, to support his claim for costs and in the light of the way the case was put, improperly put, in my submission, by the airport authority on this point. I would ask your Lordship to consider a claim for indemnity costs.

MR JUSTICE DYSON: You are asking not only for this figure in Schedule B but more on top.

MR JAY: £750 plus VAT for Mr Gordon. He advised in consultation and he must have spent -- although I do not have instructions on this, but I know how long it took me to prepare the case, he must have spent three or four hours preparing the case and giving his advice.

MR JUSTICE DYSON: The difficulty is, even if I am with you, that was only one of a number of points, so whatever view one might take about what I will call Ground 2, Ground 1 was also a perfectly legitimate ground as to which no complaint----

MR JAY: Absolutely no complaint about Ground 1, my Lord, it is Ground 2.

MR JUSTICE DYSON: I do not think it is a case in which it would be right to order indemnity costs. What do you say about this £170?

LORD KINGSLAND: I must say at the outset, my Lord, I do find this practice of discussing detailed costs----

MR JUSTICE DYSON: We all have to come to terms with it.

LORD KINGSLAND: I know we have, but I preface my remarks by saying -- I do not want in any way to say that my learned friend's solicitor is not worth that amount of money, but we have to deal with the new rules. What I am saying in that context is, I have the guideline hourly charging rates for solicitors of October 1999 which is the Law Society's list of guidance. The figure here for Cambridge is £125.

MR JUSTICE DYSON: This is the Law Society, October 1999. What are you reading from, Mr Jay?

MR JAY: It is Chambers my Lord, giving the low figure, the average and the high figure.

MR JUSTICE DYSON: That is dated?

LORD KINGSLAND: I may have misled you, my Lord. The rate here is not the charge rate, it is the rate that is recoverable inter partes, which is £125.

MR JAY: It says Chambers 3000 Leading Lawyers. It must be quite recent.

MR JUSTICE DYSON: I am going to award the full amount claimed. I do not see any reason for saying that there should be any reduction. If this is a medium average charging rate which actually applies in Cambridge, I do not see why Mr Thomas should be out of pocket. I am going to assess the costs in the full amount claimed.

LORD KINGSLAND: As your Lordship pleases. We have an agreement on costs as your Lordship will not be surprised to hear from the Secretary of State in regard to the consent order?

MR JUSTICE DYSON: Am I concerned with that?

LORD KINGSLAND: My Lord, I trust your Lordship will take that into account in awarding----

MR JUSTICE DYSON: I do not see why I should. I understood the only point you were making was as to whether the hourly charging rate should be £125 or £170.

LORD KINGSLAND: That is the point I was making on the schedules.

MR JUSTICE DYSON: I have decided that, there is nothing left, is there?

LORD KINGSLAND: It is just that this agreement exists with the Treasury, the DETR on costs. I want to make sure that that agreement will be respected. It is a perfectly legitimate request to make to your Lordship, in view of the fact that the DETR are party to this dispute.

MR JUSTICE DYSON: I am not clear what you are asking me to do? If there is a contract between the two of you, that is a matter for the parties. It is your application for judicial review which was opposed by Mr Thomas and it has failed, so that on the face of it, it is right that the order for costs should be made against your client. If some deal has been arranged between you and the Secretary of State, well that does not seem to be of any concern to me.

LORD KINGSLAND: My Lord, I cannot argue with that. I do not know if my learned friend Miss Lieven has anything to add to that.

MISS LIEVEN: My Lord, to the degree that the airport company have a claim against my client in costs is a matter of contract claim and is not a matter for your Lordship, so I would invite your Lordship to make no order as to that. Whether such a claim in contract subsists in the light of your Lordship's judgment is a matter that I would not wish to express an opinion on at this stage as it is a somewhat technical issue as to consideration, I suspect, but certainly it is not a matter for your Lordship as I understand it.

LORD KINGSLAND: My Lord, there is an agreement between the parties and, in those circumstances, I would invite your Lordship to take account of that in making an order for costs in respect of my learned friend along the lines I have suggested.

MR JUSTICE DYSON: I am not clear what you are asking me to do?

LORD KINGSLAND: I am asking you to ensure that the DTTR pay costs according to the agreement they have with us, an agreement----

MR JUSTICE DYSON: I cannot do that. I do not know if there is an agreement, it is simply not before me. If there is an agreement, then that agreement -- if it is enforceable, then no doubt it will be enforced, but that is not my concern.

LORD KINGSLAND: There is only one other matter I want to raise and that is asking for leave to appeal. My Lord, as your Lordship will realise, the procedure adopted in relation to the 1973 Act is non-statutory, and is rather unusual in that respect, but there is no statutory procedure in relation to the exercise of his discretion by the Secretary of State and, indeed, no procedure subsequent to his decision for appeal. I think that point was made to you by my learned friend and is obvious on the papers.

In those circumstances, and given the fact that this is the first time a decision has been made or, at least, I know of no reported decision on this section, I feel that ought to influence your Lordship in considering a grant of leave to appeal. I would say, furthermore, the case that we put to your Lordship was a case that was at least, in part, agreed to by the Secretary of State, and that is exhibited in the consent order.

There is also, in my submission, an important point of public interest. As I said yesterday, in the course of my submissions, the airport chose the particular spot to station the helicopters for environmental reasons. It was the position in the airport that did the least damage to those living around the aerodrome.

As a consequence of your Lordship's decision, the incentive now to the airport authorities in the future will be to station helicopters or other aircraft not necessarily in the best position environmentally because of the danger they would face and other action of this sort. That is an important factor which goes wider than this dispute in line with my request for leave to appeal.

MR JUSTICE DYSON: Thank you very much. Mr Jay, do you want to say anything?

MR JAY: If your Lordship had found for me on my Bulger point, as to which your Lordship expressed no opinions (this is on the first issue) one can see at once that a point of law of importance, fit for consideration for the Court of Appeal might have arisen. Your Lordship found for me on the Secretary of State's test, the test which was more charitable to my learned friend, and your Lordship's judgment was devastatingly, if I may say so, against my learned friend on every point, and there is no prospect of success here. It is also, in my submission, unfair to expect Mr Thomas to have to expose himself to a risk of further costs in the Court of Appeal, having already taken a massive risk in the circumstances of the Secretary of State's proposed concession in seeking to defend the judicial review.

Your Lordship's judgment, if I may say so, is ironclad. My learned friend in his submissions to your Lordship just now has not indicated why there would be a realistic prospect of success, but merely that the consequence of your Lordship's judgment may be difficult for his clients and others in a similar position. That is not the test. I ask your Lordship to leave the matter to the Court of Appeal.

MR JUSTICE DYSON: You will have to ask the Court of Appeal for permission, thank you.