court of appeal, The Royal Gazette has learned.

For lawyers acting for would-be burger barons Grape Bay Ltd. yesterday formally asked the Court of Appeal for leave to appeal to London's Privy Council.

But it could take up to a year before the London Law Lords make a ruling on the controversial case.

And that means that space at the Airport -- leased to Grape Bay by the Ministry of Transport and earmarked for a McDonald's -- could lie empty until all the legal avenues have been exhausted.

Grape Bay lawyer Mark Diel said yesterday: "We have instructions to file an application to the court seeking leave to appeal to the Privy Council.'' The move comes only weeks after the Court of Appeal overturned an earlier Supreme Court decision backing Grape Bay Ltd.

Puisne Judge Vincent Meerabux ruled that an Act of Parliament banning fast food with a foreign flavour breached constitutional guarantees protecting property rights. Solicitor General William Pearce appealed that decision to the Court of Appeal.

And the three-judge Court of Appeal insisted that -- although "letters of intent'' held by Grape Bay were property and that the firm had been deprived of property by the anti-burger Prohibited Restaurants Act -- the law should be reinstated.

Grape Bay Ltd. -- controlled by ex-Premier Sir John Swan and Home Affairs Minister Maxwell Burgess -- was awarded a lease for an airport restaurant more than a year ago.

But the decision has yet to be ratified by Parliament because of the ongoing legal row.

After the Court of Appeal announced its decision at the start of this month, new Transport Minister Erwin Adderley admitted Government's "hands were tied'' until the legal process was completed. And he admitted Government could not force Grape Bay to back off or insist on another kind of restaurant.

He said yesterday: "At this point, I'm reluctant to comment on this.

Privy Council set to hear appeal over McDonald's "Once there was a decision by the Court of Appeal we wrote to Grape Bay asking them to clarify their intentions and they have not responded.'' But he added: "From Government's perspective, we are interested in having a restaurant facility there ASAP.'' Mr. Diel said Government had not moved to have the lease ratified after the Supreme Court decision in Grape Bay's favour because an appeal was pending.

He added: "I would sincerely hope that the Goverment, not having done anything in relation to the lease after the Supreme Court decision in Grape Bay's favour, exercise the same consideration now that it will shortly be under appeal to the Privy Council.'' Mr. Diel has to apply to the Court of Appeal for leave to go to the Privy Council.

But even if formal leave is not granted the argument can still be taken to London as the Privy Council is obliged to hear appeals on Constitutional issues.

Failure to get official approval for an appeal, however, is generally regarded as weakening a case.

The Prohibited Restaurants Act was pushed through the House of Assembly by a rebel group of Government MPs led by Ann Cartwright DeCouto, with support from the Opposition, in 1996.

Senate, however, used its powers to block the Act for 12 months. But the rebels won another vote in 1997 which meant Senate had no further right to block it and Governor Thorold Masefield signed the Act into law last August.