in the HIGH court OF JUSTICEclaim no. 0CF90671 
QUEENS BENCH DIVISION 
CARDIFF DISTRICT REGISTRY 
15th FEBRUARY 2011 
Between: 
BDW TRADING LIMITED claimant 
(t/a BARRATT HOMES) 
and 
(1) ANNE-MARIE SPOONER 
(REPRESENTING THE MERTON GREEN ACTION GROUP) 
(2) MELIN HOMES LIMITED DEFENDANTS 
judgment 
HaNDED DOWN IN THE ABSENCE OF THE PARTIES AT CAERNARFON COUNTY COURT 

Counsel for the Claimant: Mr Steven Gasztowicz QC (instructed by Messrs Hugh James) 
Counsel for the Defendant: Mr Rhodri Williams QC (instructed by Messrs Gabb & Co) 

1. This action concerns land at Merton Green in Caerwent, Monmouthshire. 
2. The short history is that outline planning permission for residential development of the land was granted on 23rd June 2006, replaced by an identical grant of permission on 20th June 2007; in March 2007 Monmouthshire County Council appropriated the land for planning purposes; on 15th October 2007 the Claimant Barratt Homes Limited purchased the land from Monmouthshire County Council, for a sum of £10.9 million. Approval was given in respect of reserved matters and revised layout and in March of 2010 actual development of the land by building commenced. 
3. Merton Green Action Group is a group of individuals who wish to preserve the land in its existing use. The First Defendant represents herself and all other members of the Action Group. In July 2008 solicitors for the Action Group wrote to the Claimant indicating their intention to make application for the land to be registered as a village green and on 24th July 2009 application was made to do so. This has led to an Inquiry being held by the Inspector on 16th to 18th November 2010 and the Inspector's report was issued on 7.1.2011 recommending that the land be registered as a village green. 
4. The issue is whether notwithstanding any registration of the land as a village green under the Commons Act 2006, the provisions of Section 241 Town and Country Planning Act 1990 (and/or the statutory scheme in Section 122 of the Local Government Act 1972 by which the land was appropriated and/or Section 233 of the Town and Country Planning Act 1990 by which it was disposed of) permit development in accordance with the planning permission which has been granted. The Claimant contends that it does.
5. On 13th April 2010 the Claimant offered in writing to sell affordable housing units to a Housing Association Melin Homes Limited pursuant to a Section 106 agreement. On 13th September 2010 solicitors for Melin Homes Limited replied that the Housing Association was not willing to sign and return the Sale Notice until the Town and Village Green application had been defeated or the argument of the Claimant under Section 241 had been upheld in Court.
6. Section 122 of the Local Government Act 1972 gives the power of appropriation for planning purposes to a Council such as Monmouthshire County Council here. It is not in dispute between the parties that the land in this case was appropriated under Section 122.
7. By Section 233 of the Town and Country Planning Act 1990 ("TCPA1990"), where any land has been acquired or appropriated by the Local Authority for planning purposes and is for the time being held by them for the purposes for which it was so acquired or appropriated, the authority may dispose of the land (in such manner and subject to such conditions as appear to them to be expedient) in order to secure the best use of that land or to secure the erection, construction or carrying out on it of any buildings or works appearing to them to be needed for the proper planning of the area. It is not in dispute between the parties that the land in this case was disposed of under Section 233.
8. Section 241(1) TCPA 1990 provides that 
"notwithstanding anything in any enactment relating to land which is or forms part of a common [which includes…… any town or village green], open space [which includes any land used for the purposes of public recreation] or fuel or field garden allotment or in any enactment by which the land is specially regulated, such land which has been acquired by a …. Local Authority …. under this Part or under Chapter V of Part 1 of the Planning (Listed Buildings and Conservation Areas) Act 1990 or compulsorily under any other enactment, or which has been appropriated by a Local Authority for planning purposes - 
a) if it has been acquired by a Minister, may be used in any manner by him or on his behalf for any purpose for which he acquired the land; and
b) in any case, may be used by any person in any manner in accordance with planning permission". 
(I have inserted in parentheses the definitions set out in s336 TCPA 1990). 
9. By Section 246(3) T&CPA 1990 
"any power conferred by Section 238, 239 or 241 to use land in a manner mentioned in those sections shall be construed as a power so to use the land, whether or not it involves the erection, construction or carrying out of any building or work or the maintenance of any building or work.
10. The application by the action group for registration of this land was made under s15 Commons Act 2006. The predecessor of the Commons Act 2006 was the Commons Registration Act 1965. The effect of successful application for, and registration of land as, a village green has been the subject of authoritative interpretation. Registration
"does not mean that the owner is altogether excluded from the land. He still has the right to use it in any way which does not interfere with the recreational rights of the inhabitants.
(the "Oxfordshire" case, Oxfordshire County Council -v- Oxford City Council and another HL2006 2AC 674, Lord Hoffmann at paragraph 51).
11. The First Defendant represents the Action Group. The Action Group argue by leading counsel that "the effect of registration has already been determined by the Supreme Court" and my attention was drawn to passages from Lewis -v- Redcar and Cleveland Borough Council 2010 2AC70 with full citation of passages from individual judgments. 
12. These include: 
Lord Walker, (setting out and approving subject to a reservation immaterial to the case before me) the judgment of Lord Hoffmann when he said
"49. So one has to look at the provisions about greens in the 1965 Act like those of any other legislation, assuming that Parliament legislated for some practical purpose and was not sending commons commissioners round the Country on a useless exercise. If the Act conferred no rights, then the registration would have been useless, except perhaps to geographers, because anyone asserting rights of recreation would still have to prove them in Court. ……
50. In my view, the rational construction of Section 10 [1965 Act] is that land registered as a town or village green can be used generally for sports and pastimes…..
51. (already cited above). 
Lord Hope, (after citing paragraph 51 in Oxfordshire ) 
"There is a subtle change of language. [Lord Hoffmann] said: 
"in the present case, first, the owner retains his title to the land and his right to use it in any way which does not prevent its use by the inhabitants for recreation and, secondly, the system of registration under the 1965 Act was introduced to preserve open spaces and public interest".
I think that the first passage, in which Lord Hoffmann uses the words "interfere with", goes someway to supporting the idea that after registration the rights of the local inhabitants predominate. The second passage, one the other hand, does not. "Preventing the use of the land for recreation would of course defeat the point of registration completely".
Lord Brown, 
"100. ….. If, however, as I would prefer to conclude, the effect of registration is rather to entrench the previously assumed rights of the locals, precluding the owner from thereafter diminishing or eliminating such rights but not at the expense of the owner's own continuing entitlement to use the land as he has been doing, then I would hold that no more is needed to justify registration than what, by common consent, is agreed to have been established by the locals in the present case.

101…… The only consequence of registration of land as a green is that the locals gain the legal right to continue to "indulge" in lawful sports and pastimes upon it (which previously they have done merely as if of right) - no more, no less. To the extent that the owners own previous use of the land prevented their indulgence in such activities in the past, they remain restricted in their future use of the land".
13. The competing contentions, put at their simplest, are as follows. 
14. The Action Group's case is that the effect of registration has already been determined by the Supreme Court, in the sense set out above; secondly that there is nothing in s241 T&CPA 1990 to indicate that it applies to specific legislation passed later in respect of village greens, and so it does not apply to the present registration of land at Merton Green since that is made under the Commons Act 2006; and/or that there is no indication in the Commons Act 2006 that the consequences of registration as a village green must give way to the provisions of the earlier Town and Country Planning Act 1990. Further, attention is drawn to Section 15(4) Commons Act 2006 to which I must refer below.
15. The Claimant contends that the provisions of s241 TCPA 1990 are entirely general, referring to "any enactment" and the section does not state that it is restricted in any way to enactments prior to the 1990 Act; if it had been intended to be restricted to any earlier enactment or any prior enactment it could easily have been so expressed; the 2006 Act is on its face a statute relating to village green land and there is nothing in the 2006 Act to disapply s241 of the 1990 Act; likewise if it was intended that anything in the Commons Act 2006 should take away the provisions in s241 TCPA 1990, that could be expected to be spelled out; and the 2006 Act does not satisfy the requirements for the doctrine of implied repeal in relation to s241 of the 1990 Act.
16. There is no reported authority on whether the provisions of Section 241 Town and Country Planning Act 1990, or the statutory provisions for the effect of registration under the Commons Act 2006, should prevail.
17. I turn first separately to the reliance by the Action Group on judicial interpretation on the effect of registration, once made. In written submissions to the inspector for the Inquiry, it appeared to be the contention of the action group that following registration as a village green the owner can use the land (only) for any lawful purpose which does not interfere with the rights of local residents to use the land for recreational purposes, 'not by reason of legislation but by reason of judicial pronouncement' (see paragraph 34 of that written submission 29.10.2010). The argument by Leading Counsel for the Action Group before me was more cautious, but nonetheless placed heavy reliance on that interpretation. 

18. In its original form, the argument for the Action Group appears to me untenable. The opinions themselves delivered by their Lordships were based on construction of the relevant statute (eg only Lord Hoffmann at paragraph 50 and Lord Brown in paragraph 101). In neither case was the Court dealing with the potential application of Section 241 TCPA 1990. Judicial pronouncement that the land owner is always able to use the land consistently with the rights given by the statute does not answer the question whether Section 241 TCPA 1990, in its reference to "notwithstanding anything in any enactment", is to be understood to embrace the enactment in question here namely the Commons Act 2006.
19. It will remain a relevant matter whether the potency of legal rights so contemplated for those who benefit from registration of a green should influence or inform the construction of these two statutes. It is in this sense that I understood leading counsel for the Action Group to present his argument. 
20. I turn to the arguments for the Claimant. 
21. Leading Counsel submits that s241 TCPA 1990 refers to "any enactment" and does not state that this is restricted in any way to enactments prior to it. It does not say "any earlier enactment" or "any prior enactment" as it easily could have done had that been intended. The 2006 Act is on its face a statute relating to village green land and there is at the same time nothing in the 2006 Act to disapply s241 TCPA 1990 in relation to it. 
"There is nothing inconsistent in Parliament saying that any enactment relating to village greens shall be subject to the proviso such land can, if appropriated by a Local Authority for planning purposes, be used in accordance with any planning permission granted, and Parliament then enacting legislation to which this will apply, nor is there any reason why this should not apply to such legislation". 
If anything in the Commons Act 2006 was intended to take away the provision in the Town and Country Planning Act 1990 that could be expected to be spelled out. Parliament "must be taken to know of the terms of s241 and had the 2006 Act not been intended to be subject to it, as it does on its face, it could have been expected to say so". Accordingly there is no inconsistency between the two Acts, and the principle of implied repeal on the basis of inconsistency does not apply.

22. On the doctrine of implied repeal, namely that later laws abrogate earlier contrary laws, it is contended that the authorities as summarised in Bennion on Statutory Interpretation establish that
1. The Courts presume that Parliament does not intend an implied 
repeal of an earlier statute; 
2. The presumption against implied repeal is stronger where modern precision drafting is used; 
3. The presumption is also stronger the more weighty the enactment said to have been repealed; and 
4. The presumption is subject to the well recognised countervailing presumption that a general provision does not derogate from a special one: "Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is to be presumed that the situation was intended to continue to be dealt with by the specific provision rather that the later general one. Accordingly the earlier specific provision is not treated as entirely repealed".
23. Leading Counsel for the Action Group concedes that there is no express restriction in s241 TCPA 1990 to indicate a restriction to prior legislation but says that equally there is no express reference to future legislation. However one can find provisions, such as that in Local Government Act section 3, which does make express reference to enactment "whenever passed or made". He argues that on their face, the statutes are inconsistent with another, and so the latter statute should prevail. He refers to the question asked in Bennion, 'are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier Act that the two cannot stand together?' and argues that the 2006 Act is the sole legislation dealing with town and village greens, and so should be taken to be the expression of Parliament's will in relation to town and village greens, and/or it is the earlier provision which is general and the later which is specific so as to be an implied repeal in relation to this specific area.
24. First of all, I find it helpful to stand back from the individual wording of the respective statutes. The Commons Act 2006 has made it easier to effect registration of land as a town or village green, but it has not changed the effect of registration from that under the 1965 Act. Where there had been a registration of a village green under the 1965 Act, the provisions of s241 TCPA 1990 had full effect. The contrary is not suggested. In looking at the legislation as a whole, or in the round, to the extent that I have been able to do so I do not discern a positive re-evaluation of the balance between the public interest in development of land appropriated by a principal authority for given planning purposes so long as planning permission has been granted and the public interest in individuals being able to use for recreational purposes land which has been the subject of registration as a village green.

25. Second, the Town and Country Planning Act 1990 provided the fundamental legislative architecture for planning use of land, with both general over-arching provisions, and highly detailed specific provision for individual areas, and checks and balances for resolving countervailing interests. In my judgment this is of significant weight in approaching the task of statutory interpretation here. The provision in s241 TCPA 1990 in question here is in my judgment highly specific in the provision which it makes in respect of land which is or forms part of a common or open space.
26. Third, the language of s241 is entirely general, "notwithstanding anything in any enactment". In a large scale enactment such as this, dealing both with general architecture and specific provision, it would be natural, if Parliament intended this to refer only to prior or previous enactment, for the statute to say so expressly.
27. Fourth, at least initially I am not attracted by argument as to "pointlessness". Leading Counsel for the Action Group contends that it would be pointless to have a village green registration, if there were the ability to the developer to build in these circumstances. If there were a general entitlement to a builder to develop simply by reason of the grant of planning permission, I would agree. However here application for a village green registration would be "pointless" only in the circumstances of Section 241, namely where the Local Authority itself had acquired for planning purposes, and planning permission had then been granted. In addition, there may but there may not always be, a development of the land which is subject to registration as a village green. 
28. Fifth, it is for Parliament to strike a balance between the respective public, and private, interests which may be involved in a case such as this. I have ready sympathy for the wishes of those living locally to protect the recreational enjoyment of land which they have hitherto enjoyed as if of right. But given that it is for Parliament to strike the balance, it does not seem to me that there is anything inconsistent in an enactment providing that in general inhabitants will have a right to use a registered village green for sports and pastimes, and there being provision such as that in s241 TCPA 1990 that notwithstanding any such enactment, where the situation is that land has been appropriated for planning purposes the land owner shall nonetheless be entitled to use it for any purpose for which planning permission has been granted.
29. Section 29 Commons Act 1876 and Section 12 Inclosure Act 1857 are enactments which provide that building on village greens is a nuisance. It is clear (and it is common ground) that these enactments are overridden where land has been appropriated for planning purposes by reason of Section 241 which allows development by any person in accordance with planning permission. It is entirely possible for Parliament to have struck a like balance elsewhere. 

30. I note also that provision is made in substantially the same terms as s241 by s21 New Towns Act 1981. Any land "being or forming part of a common, open space or fuel or field garden allotment, which has been acquired for the purposes of that Act by a development corporation or local highway authority, or which has been acquired under that Act by the Secretary of State", may 'in the case of land acquired by such a corporation of authority, be used by them, or by any other person, in any manner in accordance with planning permission', "notwithstanding anything in any enactment relating to land of that kind, or in any enactment by which the land is specially regulated" '.
31. The point here at issue was not argued in R (Beresfords) -v- Sunderland City Council 2004 1 AC 889. However at paragraph 52 Lord Scott said
"where 'open space' comes into the ownership of a principal Council, I think there to be strong arguments for contending that the statutory scheme under the Local Government Act 1972 whether or not the Open Spaces Act 1906 or Section 21(1) of the New Towns Act 1981 are applicable, excludes the operation of Section 22(1) of the Commons Registration Act 1965. But these arguments have not been addressed to your Lordship. I think also as at present advised, that the power of disposal of "open space" land given to principal Councils by Section 123 of 1972 Act will trump any 'town or village green' status of the land whether or not it is registered".
Indeed he considered that an appropriation under Section 122 of the Local Government Act 1972 of land held for open space purposes would in itself plainly override any public rights of use of an open space that previously existed "otherwise the appropriation would be ineffective and the statutory power frustrated".
32. Above I have indicated that I see no intrinsic inconsistency in Parliament striking a balance between the respective interests so as to permit development where the Local Authority has appropriated land for planning purposes, and the interests of those entitled to rights of recreation in respect of a village green. Nonetheless one or the other provision must here prevail. In application to the land here in question, there is an inconsistency between the provisions of s241 and the provisions giving effect to registration as a village green under the Commons Act 2006.
33. In my judgment it is not sufficient to say that the 1990 Act is of general application and that the Commons Act 2006 is specific or particular. In relation to village greens, s241 TCPA 1990 is specific in its prescription. In relation to village greens, it is the Commons Act 2006 which is the more general in application, and/or, in the telling phrase of Leading Counsel for the Claimant, it is only when there is a village green that s241 "kicks in".
34. It seems to me that this is an important consideration in considering the contention that whatever the effect of Section 241 Town and Country Planning Act 1990 on pre-existing legislation it cannot oust the later legislation, namely the Commons Act 2006, and/or that the later Commons Act 2006 prevails.
35. At paragraph 22 I have recorded above contention which appears accurately to summarise the authorities considered in Bennion on Statutory Interpretation. 
36. I see considerable force in the contention for the Claimant that 
1. The starting point here is to presume against repeal. 
2. The presumption is stronger because the Commons Act 2006 is an example of modern, precision drafting. 
37. The Claimant then contends that "the presumption is yet stronger because the Town and Country Planning Act 1990 is the principal Act regulating the planning system for the whole of England and Wales. It is the current fundament of that system". Expressed in this general form, the proposition may be too simple. I do however repeat and adopt what I set out at paragraphs 24-26 above. 
38. As I have there indicated, in respect of a village green it is the Commons Act 2006 which is in my judgment the more general in application and s241 TCPA 1990 which is the more specific provision. 
39. All this is subject to consideration of the important point made by Leading Counsel for the Action Group based on Section 15 Commons Act 2006. By Section 15,
"(1) Any person may apply to the Commons Registration Authority to register land to which this part applies as a town or village green and a case where sub-section (2), (3) or (4) applies. …..
(4) This Section applies (subject to sub-section (5) ) where 
(a) a significant number of the inhabitants of any locality or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the commencement of this section; 
(c) the application is made within the period of 5 years beginning with the cessation referred to in paragraph (b) 
(5) Sub-section (4) does not apply in relation to any land where: 
(a) planning permission was granted before 23rd June 2006 in respect of the land; 
(b) construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted;
and 
(c) the land - 
(i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or 
(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes". (Emphasis supplied). 
It is contended for the Action Group that as a matter of simple statutory interpretation, therefore, it is clear that Section 15(5) permits an application for registration of a village green to be made and to succeed unless strictly defined prior planning permission has been granted and implemented before 23.6.2006. This did not occur in the present case. The Act came into force on 6.9.2007 in relation to Wales, at which point Merton Green became vulnerable to an application under Section 15 Commons Act 2006. 
40. In oral submissions it was argued that the 2006 Act thus made strictly limited and defined provision protecting a developer where construction works were commenced before a defined date, whereby the land by reason of works carried out under planning permission had become permanently unusable by the public for lawful sports and pastimes, i.e. rights in respect of the village green; but did not make other provision. The 2006 Act could have made provision in terms of s241 TCPA 1990 but it did not do so; and that this is a further indication that the 2006 Act should prevail. 
41. It seems to me there are two potential answers to this. First, by the 2006 legislation, Parliament made it easier for registration to be made; it is understandable that if in doing so it expressly protected the position of someone who had carried out works under a planning permission so as to make the land unusable as a village green by a given date. It does not follow that the intention was to abrogate the provisions of s241 in respect of land which had been appropriated by a Local Authority for planning purposes. Second, it seems to me that Parliament and/or the Parliamentary draftsmen may have had in contemplation that s241 did already make specific provision, and in wholly general terms, namely "notwithstanding anything in any enactment relating to land which is or forms part of a common, open space ….. . etc.".
42. Standing back, given what I have set out at paragraphs 24-28 above, it does seem to be a little strange if Parliament, having by s241 T&CPA 1990 intended to allow development in the circumstances there set out, following appropriation for planning purposes by a Local Authority, were without express reference to have abolished this by passage of the 2006 Act.
43. I was left with a faint and perhaps false impression that a more wide ranging consideration of this and other like statutes might have thrown further light on the proper solution to the question. For my part I have reached the clear conclusion in the light of my observations above that it is the provisions of section 241 Town and Country Planning Act 1990 which prevail and that the Commons Act 2006 has not expressly or impliedly abrogated the effect of those provisions.
44. At the outset of the hearing before me on 18th January 2011 application was made for a protective costs order in favour of the Action Group. It was supported by a statement by Mr Candler a partner in the solicitors who have been acting on behalf of the Action Group dated 14th January 2011. 
45. The governing principles are, so far as material, to be found in R (Corner House) v SoS Trade & Industry 2005 EWCA Civ 192. A Protective Costs Order (PCO) would only be made in a case which is the exception. (i) A PCO could be made at any stage of the proceedings on such conditions as the Court thought fit provided that the Court was satisfied that (a) the issues raised were of general public importance; (b) the public interest required those issues should be resolved; (c) the Applicant had no private interest in the outcome of the case; (d) having regard to the financial resources of the Applicant and the Respondent and to the amount of costs that were likely to be involved it was fair and just to make the Order; (e) if the Order was not made the Applicant would probably discontinue the proceedings and would be acting reasonably in so doing. (ii) If those acting for the Applicant were doing so pro bono that would be likely to enhance the merits of the application for a PCO. (iii) It was for the Court in its discretion to decide whether it was fair and just to make the Order in the light of the above considerations 
46. I note that a protective costs order can be made at any stage of the proceedings. However a salient principle is that if the Order were not made the Applicant would probably discontinue the proceedings and would be acting reasonably in so doing. Here, the Action Group were represented at the hearing by solicitor and leading counsel. Neither was instructed pro bono. 
47. With solicitor and Counsel already instructed and ready to proceed with argument upon the materials filed by each party it seemed to me impossible to say that a sufficient and exceptional case existed to make a protective costs Order, on the day of hearing itself, in respect of that hearing. Nonetheless when reserving Judgment, I was invited to consider making a protective costs Order in favour of the Action Group for any further participation in the proceedings.
48. In my Judgment the issue raised by this claim is of public importance. If the contention by the Claimant is correct, applications for registration of land under the Commons Act 2006 will not be pointless in every case whenever there has been appropriation under Section 241 Town and Country Planning Act 1990, but in very many if not most of those cases registration will be deprived of substantial useful effect. The issue in question has not yet been ruled upon by any Court. The members of the Action Group have no pecuniary interest in the land. To some extent their interest is private in that they are residents of Caerwent and wish to preserve the right to use the land in question for recreational purposes if it registered pursuant to the recommendation which the inspector has made; but the members of the Action Group have no greater rights in this respect than any other member of the community, and in that respect are merely a group representative of the community. 
49. Mr Candler states that the Action Group is comprised of either retired people or people working in ordinary jobs whose assets are likely to be limited to their own homes and perhaps some modest savings. There is certainly a profound imbalance between the resources likely to be available to this Action Group in the village of Caerwent and the formidable resources of the Claimant, a substantial publicly listed company. The point is of general importance to the Claimant and were the point to be decided adverse to it at any stage, it is likely that the Claimant would seek to further appeal the matter, given the potential importance to it of the point at large.
50. Mr Candler contends that it is quite likely that, subject to funding, this is a case that could go up through the Appeals system. It is asserted that the Action Group have very little by way of financial resources which the members can use to fight this case.
51. Such matters may of course be highly relevant to what ordinary order for costs ought to be made in consequence of the hearing and the judgment which I have delivered. I do not know whether the Action Group will seek permission to appeal from my ruling. They incurred expense in preparation for the inquiry before the inspector, and representation by Counsel at the inquiry. They may lose the substantial benefits of registration of land as a village green if my construction of the legislative provisions is correct. 
52. For all these reasons I can see very strong argument that for the purposes of arguing or preparing submission that there should be permission to appeal, or in respect of other consequential matters, there should be a Protective Costs Order. 
53. In contrast, in the event that there were proceedings before the Court of Appeal, it is in my judgment preferable that the Court of Appeal itself should decide whether there be a Protective Costs Order in respect of those proceedings. 

54. However at the hearing Leading Counsel for the Claimant indicated that if the court were to contemplate making any form of PCO, he would wish to develop detailed submissions upon the point. He did not do so because I declined to make a PCO in respect of the hearing itself. In the light of that reservation by Leading Counsel for the Claimant I do not think it proper to make a ruling in this written Judgment. Conversely it is conceivable that the Action Group may argue that I should not only grant permission to appeal but make a PCO in respect of the proceedings in the appeal. 
55. For the record, Melin Homes the Second Defendant have taken no active part in the proceedings and made no submissions.
56. I propose to hand down this written Judgment without requiring the attendance of the parties, reserving consequential matters to written representations and/or oral hearing if requested by either party. Before receiving any written or oral representations in respect of other matters, I will give the opportunity to the Claimant to make representations, in writing only, whether a Protective Costs Order should be made in respect of any costs from the date of the hearing but at first instance only. Any such representations shall be lodged with the court no later than 14 days after judgment is handed down. Thereafter I will make ruling upon the application for a PCO in respect of any further costs incurred after the date of the hearing at first instance. 
57. It will then be open to the parties to notify the court whether they are content to make written representation in respect of matters consequential on judgment or wish the court to list the matter for oral hearing. I wish to express my thanks to both Leading Counsel for their submissions and assistance. 

14th February 2011. 
His Honour Judge Seys Llewellyn, QC sitting as an additional judge of the High Court 
Rosie Pahl 
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