thanks guys for posting , went to a BMW independent with the BMW software , cleared faults etc , took x5 for a spin drove the life out of it to see what new faults came up.
internal fault came up in the gearbox ,basically its looking for a gear and not finding it between first and second 3rd to fourth.
I was having real probliems in the morning before the oil heated up in the gearbox it was slipping badly in the lower gears , it was the plates internally slipping , I can only assume that when the oil heats up the expand somewhat making better contact.
anyhow it is going tomorrow to get gearbox reconditioned
thanks very much for your comments