ROGER MORRIS v WREXHAM COUNTY BOROUGH COUNCIL [2001] EWHC 697 (Admin)

IN THE HIGH COURT OF JUSTICE

(Queen's Bench Division)

ADMINISTRATIVE COURT

[2001] EWHC 697 (Admin)

Case No Case No. CO/3924/2000

Venue Cardiff Crown Court, Cathays Park, Cardiff

Between

ROGER MORRISAppellant

WREXHAM COUNTY BOROUGH COUNCIL

1stRespondent

THE NATIONAL ASSEMBLY FOR WALES

2ndRespondent

Before

THE HON. MR. JUSTICE JACKSON, Kt

Date 18 May 2001

[1]MR. JUSTICE JACKSON: This judgment is in six parts, namely Part 1 "Introduction", Part 2 "The Facts", Part 3 "The Present Proceedings", Part 4 "The Law", Part 5 "Did the Inspector correctly apply the law to the facts of the present case?", Part 6 "Conclusion". PART 1: Introduction

[2]This is an appeal against an Inspector's decision upholding a listed building enforcement notice. The appellant is Mr. Roger Morris, a property owner, who has been required by the enforcement notice to remove and replace certain roofing works. The first respondent is the Wrexham County Borough Council which served the enforcement notice. I shall refer to the first respondent as "the Council". The second respondent is the National Assembly for Wales. The National Assembly for Wales appointed the Planning Inspector whose decision is now under appeal.

[3]The enforcement notice was served pursuant to the Planning (Listed Building and Conservation Areas) Act 1990, to which I shall refer as "the 1990 Act". The appellant's appeal to the Inspector and his subsequent appeal to this court have both been brought pursuant to the provisions of the 1990 Act.

[4]In order to set the scene, I must briefly describe the property around which these proceedings revolve. The Lodge, Halton, Chirk, Wrexham, Clwyd, was formally a substantial house and is now a hotel. I shall refer to this building as "The Lodge". In past times (but no longer) The Lodge, its outbuildings and certain farmland to the north and east of The Lodge were in common ownership and occupation. I shall refer to the outbuildings which stand close to The Lodge as "the outbuildings". I shall refer to the farmland which lies to the north and to the east of the lodge as "the surrounding farmland".

[5]The outbuildings surround the northern part of what used to be the courtyard of The Lodge. The western part of those outbuildings now belongs to Mr. and Mrs. Davenport, who own The Lodge. I shall refer to these outbuildings as "the north-west outbuildings". The eastern part of the outbuildings now belongs to the appellant, who also owns the surrounding farmland. I shall refer to these outbuildings as "the north-east outbuildings". Part of the north-east outbuildings has been converted into a dwelling-house, which is now occupied by the appellant's mother. Part of the north-east outbuildings is used by the appellant as a cattle milking shed.

[6]Somewhat to the north of all the outbuildings there stand other farm buildings, to which I shall refer as "the farm buildings". These are now used by the appellant in conjunction with his farming activities.

[7]The roofing works the subject of these proceedings were carried out by the appellant to the north-east outbuildings in 1996.

[8]Now that I have set the scene and defined the terms to be used, I shall narrate the relevant facts in chronological order. PART 2: The Facts

[9]In the seventeenth century The Lodge was a hunting lodge for the Chirk Castle Estate. In the late eighteenth century, the nineteenth century and early twentieth century the area around The Lodge was used for coal mining and was known as the Black Park Colliery. During this period The Lodge served as home for successive managers of the colliery, and it was known by the name "Black Park Lodge".

[10]Between 1953 and 1962 one Ririd Myddleton owned The Lodge, the outbuildings and the surrounding farmland. In 1960 Mr. Myddleton leased The Lodge and the north-west outbuildings to Colonel Henry Bromilow. Colonel Bromilow was an elderly man. I am told by counsel that he was the last surviving son of the former colliery owner. He had lived in the house since the 1940's. The rent payable by Colonel Bromilow was £120 per annum. It is agreed by counsel that this sum is substantially less than the rack rent would have been during that period. It is a reasonable inference that this low rental figure was fixed because of Colonel Bromilow's connection with The Lodge and, probably, his family relationship with Mr. Myddleton.

[11]It appears that between 1953 and 1962 Mr. Myddleton, or a tenant of Mr. Myddleton, farmed the farmland surrounding The Lodge and used the north-east outbuildings in connection with that farming activity.

[12]In July 1962 Mr. Myddleton conveyed to William Jones The Lodge, the outbuildings and the surrounding land. This conveyance was subject to the lease to Colonel Bromilow. On 29th June 1965 that lease came to an end by affluxion of time. On 30th June 1965 Mr. Jones granted a fresh lease to Colonel Bromilow of The Lodge and of the north-west outbuildings on the same terms as the previous lease. Again it seems probable that the low rental figure was fixed because of Colonel Bromilow's connections with The Lodge and/or his family connections with Mr. Jones. It appears to have been the intention of all parties that The Lodge should be Colonel Bromilow's home for life at a modest cost.

[13]On 4th January 1966 the Secretary of State for Wales listed The Lodge, pursuant to s.32(1) of the Town and Country Planning Act 1962, as a building of special architectural or historic interest. The Secretary of State described The Lodge as follows in the list:

"Early nineteenth century. Brick with slated roof and brick stacks. Bracketed eves. Three storeys. Sashes. Three-window front. Doric pillared porch. Two gables in front. Rectangular fanlight to door. Long wing at rear."

In a separate section of the list, Mr. Jones was shown as the owner of The Lodge and Colonel Bromilow was shown as the occupier.

[14]In November 1968 Mr. Jones conveyed The Lodge, the outbuildings and the surrounding farmland to one Iddon Evans, his wife Linda Evans and their son John Evans. Mr. and Mrs. Evans and their son were carrying on business as farmers under the firm name "I.G. Evans & Son". The conveyance to the Evans family was subject to Colonel Bromilow's lease. Following this conveyance the Evans family farmed the farmland surrounding The Lodge, and they used the north-east outbuildings in connection with their farming activity. Colonel Bromilow continued to occupy The Lodge and to make such use as he wished of the north-west outbuildings.

[15]On 29th June 1970 Colonel Bromilow's renewed lease came to an end by effluxion of time. It appears that thereafter Colonel Bromilow continued to occupy The Lodge and the north-west outbuildings without any action being taken to regularize his position. In or about 1971 Colonel Bromilow died. After the death of Colonel Bromilow, the Evans family became the occupiers as well as the owners of all of The Lodge, the outbuildings and the surrounding farmland. However, it seems doubtful that they treated this property as a composite whole. They continued to use the north-east outbuildings in connection with their farming activities, but it seems that they did not use the north-west outbuildings in the same way. The north-west outbuildings appear to have fallen into progressive disrepair over the years. Furthermore, when eventually the Evans family came to sell off The Lodge, they did not retain the north-west outbuildings as an adjunct to their farm. It seems to me unlikely that the north-west outbuildings had any farming purpose in the 1970's and 1980's.

[16]The farm buildings which the Evans family used in connection with the farmland around The Lodge can be seen on the plan at page 35 of the bundle. These farm buildings were in the region of Ordnance Survey Part No. 2157. In addition to these farm buildings, the Evans family also used the north-east farm buildings for farming purposes, as I have previously stated.

[17]In November 1989 Mr. and Mrs. Evans obtained planning permission to convert part of the north-east outbuildings into a dwelling. The part in question was the southern three-quarters of the eastern outbuilding. This work was carried out during 1990. Mr. and Mrs. Evans then moved into the newly created dwelling as their home. In order to delineate their garden, Mr. and Mrs. Evans constructed a combination of fencing and walling between the points marked E, F and G on the plan at page 16 of the bundle.

[18]In February 1991 the Evans family sold to Mr. and Mrs. Davenport The Lodge and the north-west outbuildings. Mr. and Mrs. Davenport converted The Lodge into a hotel. Since 1993 Mr. and Mrs. Davenport have carried on a hotel business at that address. It appears from the photographs that Mr. and Mrs. Davenport have made no use of the north-west outbuildings. Those outbuildings have continued to deteriorate, and some of the windows have fallen out.

[19]In November 1993 the Evans family sold to the appellant the north-east outbuildings and also the surrounding farmland. Since November 1993 the appellant has farmed that farmland. He has made use of the farm buildings at Ordnance Survey Part 2157 and also the north-east outbuildings, except for the section converted into a dwelling-house. That dwelling-house has been and is occupied by the appellant's mother.

[20]In 1995 it became apparent that the slate roof of the north-east outbuildings was falling into disrepair. In July 1996 the appellant replaced the old defective roof with corrugated steel sheeting. The Council took the view that this new roofing was out of keeping with its surroundings. The Council also took the view that the north-east outbuildings were a listed building because they fell within the curtilage of The Lodge. On 5th November 1999 the Council served upon the appellant an enforcement notice(1) asserting that the construction of the new roof was a breach of listed building control,

(2) requiring its removal and

(3) requiring the construction of a tile or slate roof.

[21]The appellant appealed against the enforcement notice, pursuant to s.39(1) of the 1990 Act, on a variety of grounds. The only ground which is relevant for present purposes is the contention that the north-east outbuildings are not a listed building because they do not fall within the curtilage of The Lodge.

[22]The National Assembly for Wales appointed Mr. Clive Cochrane, a Planning Inspector, to hear and determine the appellant's appeal. The Planning Inspector received written evidence from both parties. On 10th July 2000 the Inspector visited the site and had the opportunity to ask any questions necessary to clarify the evidence. In a written decision dated 18th September 2000 the Inspector dismissed the appellant's appeal. The Inspector upheld the enforcement notice, save that he amended the description of the replacement roof which the appellant must construct.

[23]The Inspector dealt with the question whether the north-east outbuildings constituted a listed building as follows: 6."The claim that the appeal building is not of special architectural or historic interest is made on the grounds that it does not form part of the curtilage of the principal listed building, The Lodge. Whereas ground(a) seeks to challenge the intrinsic architectural or historic value of a statutorily listed building, this part of the appeal actually amounts to an appeal under ground

(b) because it is claimed that the appeal building is not actually part of the curtilage of the listed building, and consequently listed building consent is not required at all for the works carried out. Some historical evidence shows that the farmhouse and the farm buildings were subdivided into separate ownership over the years, and that part of the appeal property is not a separate dwelling with its own curtilage. Whilst the appeal building is part of an original barn, which is clearly not of the same architectural merit as The Lodge, it appears to form part of the historical and functional curtilage of the principal listed building, comprising a range of outbuildings around the farmyard of the main house. 7.However, the barns and outbuildings are not listed on their own merits, and therefore would only be protected by virtue of lying within the curtilage of the listed buildings at the time it was added to the statutory list. As paragraph 88 of Welsh Office Circular 61/96 makes clear, `the principal tests as to whether an object or structure is within the curtilage of a listed building relate to the physical layout of the land surrounding the listed building at the date of the statutory listing and the relationship of the structures on the surrounding land to each other'. The Circular goes on to point out that `the courts have held that for a structure or building within the curtilage of a listed building to be part of a listed building, it must be ancillary to the principal building, that it must have served the purposes of the principal building at the date of listing in a necessary or reasonably useful way, and must not be, historically, an independent building. Where a self-contained building was fenced or walled-off from the remainder of the site at the date of listing, regardless of the purpose for which it was erected and is occupied, it is likely to be regarded as having a separate curtilage'. 8.Historically, it is unlikely that the appeal building was independent of The Lodge, and it appears from the copies of conveyance and deed plans of 1962... [This is clearly a typographical error for 1968] ...that the barns and 113 acres of land remained in the same ownership as the house. Although it would appear that the farm buildings and land were leased separately from The Lodge from 1960 until 1970, it was not until 1991 that The Lodge was sold off as a separate unit from the farm buildings and land. Therefore, notwithstanding the leasehold of the main house at the date of listing in 1966, The Lodge and the barns, including the appeal building, and the farmland were all in the same ownership. 9.Therefore, in terms of its original function, history and ownership, the appeal building has all the attributes of an ancillary part of the listed building, and I conclude that it formed part of the curtilage of The Lodge at the date it was first added to the list of buildings of special architectural or historic interest. The subsequent subdivision of part of the farmyard and the appeal building into a separate ownership in 1993 does not overcome the fact that these outbuildings are functionally and historically related to the listed building and form part of its curtilage. 10.Although it is claimed that no specific reference was made to the need for listed building consent when the conversion of part of the appeal barn into an agricultural worker's dwelling was approved in 1989, it is necessary for me to consider whether listed building consent would be required for the works alleged in the enforcement notice. Similarly, the failure of local searches and land charges to reveal that the building is part of the principal listed building do not remove the need to reach a decision on the legal grounds in this appeal. 11.I consider that the appeal building is an integral part of the curtilage of The Lodge, the principal listed building, as defined in section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990. Accordingly, listed building consent would be required for the material alterations carried out to the roof of the outbuildings, and ground

[24]On the 13th October 2000 the appellant commenced the present proceedings, appealing to the High Court against the Inspector's decision. PART 3: The Present Proceedings

[25]The appellant's appeal is brought pursuant to s.65 of the 1990 Act. This provision enables the appellant to appeal against the Inspector's decision on a point of law. The grounds of appeal are formulated in the appellant's notice as follows:

"The appeal is on a point of law, namely whether the Inspector correctly applied the law when ruling that an outbuilding was within the curtilage of the listed building so as to extend the listing status to the outbuilding in question."

[26]The appellant's appeal has been heard over the last two days. Both the appellant and the National Assembly for Wales have been represented by counsel. The Council has taken no part in the appeal proceedings and has not been represented at the hearing. PART 4: The Law

[27]Section 1(5) of the 1990 Act provides as follows:

"In this Act `listed building' means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act - (a)any object or structure fixed to the building; (b)any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before 1st July 1948 shall be treated as part of the building."

[28]Since The Lodge became a listed building on 4th January 1966, the crucial question in the present case is whether the north-east outbuildings were "within the curtilage" of The Lodge on that date. The meaning of the phrase "within the curtilage" in the context of listed building legislation has been the subject of much judicial consideration over the last 20 years. Whilst grateful for the abundance of authorities cited, I shall limit myself to those which are directly in point.

[29]Attorney-General ex rel. Sutcliffe v Calderdale Borough Council [1982] 46 P.& C.R. 399 concerned a mill which was linked by a bridge to a terrace of cottages. The mill was listed as a building of special architectural or historic interest, pursuant to s.54 of the Town & Country Planning Act 1971. In 1981 the Calderdale Borough Council proposed to demolish the terrace of cottages. Skinner J held that the Council could not do so because the cottages fell within the curtilage of the mill. Section 54(9) of the Town & Country Planning Act 1971 was in similar terms to what is now s.1(5) of the 1990 Act. The effect of that provision was that the terrace formed part of the listed building. The Court of Appeal, with some hesitation, upheld Skinner J's decision. Stephenson LJ, who gave the leading judgment, said this at 406 to 507:

"There was, I think, at the end of the argument before us agreement that three factors have to be taken into account in deciding whether a structure (or object) is within the curtilage of a listed building within the meaning of section 54(9), whatever may be the strict conveyancing interpretation of the ancient and somewhat obscure word `curtilage'. They are (1) the physical `layout' of the listed building and the structure, (2) their ownership, past and present, (3) their use or function, past and present. Where they are in common ownership and one is used in connection with the other, there is little difficulty in putting a structure near a building or even some distance from it into its curtilage. So when the terrace was built and the mill was worked by those who occupied the cottages, and the mill owner owned the cottages, it would have been hard, if not impossible, to decide that the cottages were outside the curtilage of the mill."

Stephenson LJ went on to discuss the effect of changes in ownership and changes in use of the cottages in more recent times. At page 409 he concluded, with some hesitation, that these events had not taken the cottages out of the curtilage of the mill. Ackner LJ and Sir Sebag Shaw agreed. Sir Sebag Shaw stated that he shared Stephenson LJ's doubts about the terrace of cottages remaining within the curtilage of the mill.

[30]The House of Lords revisited these issues in Debenhams PLC v Westminster City Council [1987] 1 A.C. 396. In that case two buildings were for a time linked by a subway and a bridge. One building was listed as being of special architectural or historic interest. The other was not. The House of Lords held, by a majority of four to one, that for listed building purposes the second building was neither fixed to nor within the curtilage of the first. Lord Keith, with whom Lord Templeman, Lord Griffiths and Lord Mackay agreed, discussed in some detail the facts and the decision in the Calderdale case. He then said this at page 403 D to H:

"In my opinion to construe the word `structure' here as embracing a complete building not subordinate to the building of which it is to be treated as forming part, would, in the light of the considerations I have mentioned, indeed produce an unreasonable result. Stephenson LJ in the Calderdale case considered that objection to be offset by what he regarded as part of the purpose of the listing provisions, namely that of protecting the setting of an architecturally or historically important building. But if that was part of the purpose, it would have been to be expected that Parliament would not have stopped at other buildings fixed to or within the curtilage of such a building, but would have subjected to control also buildings immediately adjoining but not fixed to the listed building, or on the opposite side of the street. All these considerations and the general tenor of the second sentence of section 54(9) satisfy me that the word `structure' is intended to convey a limitation to such structures as are ancillary to the listed building itself, for example the stable block of a mansion house, or the steading of a farmhouse, either fixed to the main building or within its curtilage. In my opinion the concept envisaged is that of principal and accessory. It does not follow that I would overrule the decision in the Calderdale case, though I would not accept the width of the reasoning of Stephenson LJ. There was in my opinion room for the view that the terrace of cottages was ancillary to the mill."

Lord Mackay, with whom Lord Griffiths agreed, said this about the Calderdale case at page 411 B to D. "In my opinion Attorney-General ex rel. Sutcliffe v Calderdale Borough Council , 46 P.& C.R.399,is a very special case on its facts, and I believe that it was possible to treat the terrace and the mill, having regard to the history of the properties, as a single unit. At the time the listing was made the whole property was in one ownership and therefore when the mill was included, a notice to that effect was served on the only person who was interested as owner in the terrace. For the reasons which I have already given, I cannot regard, with respect, the reasoning by which the Court of Appeal in that case reached its conclusion as according with the true construction of section 54(9) of the Act of 1971."

[31]Watts v the Secretary of State for the Environment [1991] J.P.L. 718 concerned a house known as Bix Manor, which was listed in 1985. A brick and flint wall abutted Bix Manor and ran alongside the drive. One of the outbuildings was converted to a dwelling, and the owner of that dwelling demolished a section of wall for the purpose of access. The Inspector held that the wall was a listed building because it was a structure attached to Bix Manor. Sir Graham Eyre, QC, sitting as a Deputy Judge of the Queen's Bench Division, allowed an appeal against that decision. At page 724 the Deputy Judge said this:

"At the date of the listing, the section of wall formed part of the curtilage of a property separate from the listed building in terms of ownership and physical occupation. That property was being put to a wholly independent use, un-associated with Bix Manor. Did the section of wall constitute a structure and solely to a building to which it had merely been associated historically and physically at some time prior to the listing, of which its owner and occupier had not been given notice under section 54(7) of the Act? He would have had little difficulty in finding that a wall was a structure ancillary to a listed building if at the time of listing it was fixed to the building and served the purpose of securing the building or its curtilage, and was therefore an accessory to the principal building. The use of words such as `ancillary' and `accessory' connoted an element of subordinate and subservient in both a functional and physical sense. At the time of the listing there was no functional connection, and that section of wall did not in any sense serve the listed building. It was clearly ancillary to another separate building and was not a structure ancillary to Bix Manor."

[32]In Secretary of State for the Environment, Transport and the Regions v Skerritts of Nottingham [2000] J.P.L. 789 the Court of Appeal held that a stable block standing in the grounds of a hotel fell within the curtilage of the hotel and was accordingly listed. Robert Walker LJ, who gave the leading judgment, said this at page 795:

"No piece of land can ever be within the curtilage of more than one building, and if houses are built to a density of twenty or more to an acre, the curtilage of each will obviously be extremely restricted. But Norse LJ recognised that in the case of what the now moribund Settled Land Act 1925 refers to as a `principal mansion house' - which is what Grimsdyke was built as - the stables and other outbuildings are likely to be included within its curtilage. I also respectfully doubt whether the expression `curtilage' can usefully be called a term of art. That phrase described an expression which is used by persons skilled in some particular profession, art or science, and which the practitioners clearly understand even if the uninitiated do not. This case demonstrates that not even lawyers can have a precise idea of what `curtilage' means. It is, as this court said in Dyer , a question of fact and degree. In my judgment the deputy judge was mistaken in treating Dyer as having such clear force as he thought it had. Not only was it concerned with dispropriatory legislation, but Calderdale and Debenhams were not cited, and the court's observations about smallness were not, on the facts of Dyer , necessary to the decision. In the context of what is now Part 1 of the Act, the curtilage of a substantial listed building is likely to extend to what are or have been, in terms of ownership and function, ancillary buildings. Of course, as Stephenson LJ noted in Calderdale (at p. 407) physical `layout' comes into the matter as well. In the nature of things the curtilage within which a mansion's satellite buildings are found is bound to be relatively limited. But the concept of smallness is in this context so completely relative as to be almost meaningless and unhelpful as a criterion."

[33]From this review of the authorities one of the principles of law which emerges is as follows: building A is within the curtilage of building B if(1) the buildings are sufficiently close and accessible to one another, and

(2) in terms of function, building A is ancillary to building B. PART 5: Did the Inspector correctly apply the law to the facts of the present case?

[34]In paragraphs 6 to 9 of his decision, the Inspector primarily focuses upon the past history of The Lodge, when the main house and the outbuildings would have been in common occupation and would have been used as a composite whole. In my judgment this is the wrong approach. While matters of past history are relevant, the primary focus of enquiry should be upon the state of affairs existing in January 1966, when The Lodge was listed.

[35]What was the state of affairs in January 1966? Colonel Bromilow was living in The Lodge as his home. He was a retired army officer, not a practising farmer. Colonel Bromilow had no right to use the north-east outbuildings, since they fell outside the land leased to him. Furthermore, Colonel Bromilow had no occasion to use the north-east outbuildings, since they were adapted for agricultural use, namely the milking of cattle. Therefore in 1966 the north-east outbuildings were not ancillary to The Lodge.

[36]I turn now to the geographical relationship between The Lodge and the north-east outbuildings. In physical terms they were relatively close. However, there appears to have been no ready access between them. A curved brick wall, which can be seen in photographs 1 and 2, ran from the north-western end to the south-eastern end of these outbuildings. The Yorkshire boarding which now stands on top of this wall and the roofing above it are all of more recent origin and should be ignored for present purposes. The position in 1966 appears to be that a brick wall of modest height separated the yard used by Colonel Bromilow from the north-east outbuildings. Whilst the Colonel could no doubt have clambered over the brick wall if he wished, access was hardly convenient.

[37]If the legal principles stated in Part 4 of this judgment are applied to the facts of the present case, the only proper conclusion is that in January 1966 the north-east outbuildings were not within the curtilage of The Lodge. It is true that the Evans family owned The Lodge, subject to Colonel Bromilow's lease, and also owned and used the north-east outbuildings. However, this circumstance cannot have the effect of bringing the north-east outbuildings within the curtilage of The Lodge. PART 6: Conclusion

[38]For the reasons stated in Parts 4 and 5 of this judgment, the appellant's appeal succeeds. This matter must be remitted to the Inspector for a re-hearing.

[39]I thank both counsel for their clear and helpful arguments, both written and oral. MISS HENKE: My Lord, it has already been agreed that costs follow the event, and the claimant's costs, as I understand it, have now been agreed. MR. JUSTICE JACKSON: Thank you very much. What is the figure? ISS HENKE: My Lord, the figure is £8,267.60 MR. JUSTICE JACKSON: Very well. I will order the second respondent to pay the appellant's costs in the sum of £8,267.60. MISS HENKE: My Lord, there is one other matter. I am instructed to apply for leave to appeal. The issue of what is a curtilage and what falls within a curtilage is a matter of great importance to the National Assembly who have to deal with matters through their Inspectors on a regular basis. MR. JUSTICE JACKSON: Are the somewhat unusual facts of this case an appropriate vehicle to seek the general clarification of the law which the National Assembly for Wales desires? MISS HENKE: My Lord, those are my instructions, and I simply put it on this basis: the Inspector applied the Welsh Officer Circular as he understood it. Your Lordship's judgment and the test that you put so succinctly is somewhat different from the manner in which it appears in the Circular, and certainly the Welsh Assembly would want to test that in the Court of Appeal. MR. JUSTICE JACKSON: Miss Henke, I understand the point which you make. I am concerned that the sum of money in issue in these proceedings is relatively small and is much less than the legal costs involved. Also I am concerned that the costs of an appeal to the Court of Appeal will be substantial. Clearly the concerns of your client extend beyond the facts of this case. MISS HENKE: My Lord, yes. MR. JUSTICE JACKSON: Is the National Assembly for Wales prepared to pay both sides' costs of the appeal irrespective of outcome? MISS HENKE: My Lord, my instructions do not go that far. MR. JUSTICE JACKSON: Do I have power to impose that condition? MISS HENKE: My Lord, I do apologise for keeping your Lordship waiting. I have to confess, I looked the matter up before I came into court, put the necessary ribbon in the right place and subsequently moved it. Such is the way that when on your feet, a removed ribbon is the one place you cannot find. I do apologise for the delay. My Lord, the answer would appear to be yes. 52.3. My Lord, I look at the key particulars of the white book at page 988. MR. JUSTICE JACKSON: I am terribly sorry? MISS HENKE: Page 988, my Lord. MR.

JUSTICE JACKSON:

"Conditional permission"

. Do you wish to make any submissions to me as to whether or not I should impose such a condition? MISS HENKE: My Lord, my obligation to my client would be to submit that you ought not. MR. JUSTICE JACKSON: Yes, I appreciate that. Have you any substantive arguments to put to me as to why I should not? MISS HENKE: My Lord, no. RULING MR. JUSTICE JACKSON: This is an application by the National Assembly for Wales for permission to appeal against the judgment which I have just delivered. In support of her application for permission, Miss Henke submits that this case raises an important issue concerning the meaning of the phrase "within the curtilage of" in the context of listed building legislation. Miss Henke tells me that the National Assembly for Wales desires to obtain further clarification from the Court of Appeal concerning the meaning of this phrase, and she tells me that the National Assembly are concerned about the matter in view of its occurrence in other cases, having nothing to do with the present case. For my part, I do accept that the point of law which arises in this case is of some importance. I can also see that the clarification of the law from the Court of Appeal would be of benefit to the National Assembly for Wales. I am, however, troubled by one matter. The sum which is at issue in these proceedings is relatively small. If ultimately the appellant loses these proceedings, he will be put to the cost of replacing the corrugated sheet roofing which now sits on top of the north-east outbuildings. The cost of that re-roofing exercise must be substantially less than the costs of the legal proceedings. The overriding objective, which is embodied in Part 1 of the Civil Procedure Rules, requires this court to deal with cases in a way which is proportionate to the amount of money involved, as well as proportionate to the importance of the case. From the point of view of the National Assembly for Wales, the importance of this litigation is not limited to what happens to a particular outbuilding in the Wrexham area. From the point of view of the appellant, his interest is limited to the roof of that particular outbuilding. In all the circumstances I have come to the conclusion that because of the importance of the point of law, I ought to grant permission to appeal. However, because of the circumstances which I have just mentioned, I should grant that permission subject to a condition as to costs. Pursuant to r.52.3(7)(b), I grant permission to appeal subject to the condition that the National Assembly for Wales pays all the costs of Mr. Morris in the Court of Appeal, irrespective of the outcome of the proceedings. In the event that the National Assembly for Wales succeeds in its appeal and establishes the principles of law for which it contends, it will then be a matter for the discretion of the Court of Appeal whether or not to disturb the order for costs which I have made in this court. Nothing which I say this morning is intended to usurp the function of the Court of Appeal in exercising its discretion in respect of all costs incurred in lower courts, including of course this court. MISS HENKE: My Lord, I am grateful. - - - - -

ROGER MORRIS v WREXHAM COUNTY BOROUGH COUNCIL [2001] EWHC 697 (Admin)

JUSTICE JACKSON:

Cited in 3 later judgments