Practice and procedure – Planning permission – Civil Procedure Rules – Claimant making second application under CPR 52.30(1) to reopen orders refusing permission to appeal in relation to two planning decisions by respondent – Whether second applications meeting criteria in CPR 52.30 – Whether claimant suffering injustice – Whether probability of different result – Whether applications for reconsideration justifiable – Application dismissed
The claimant local resident made a second application to reopen orders refusing permission to appeal pursuant to CPR 52.30 in two separate cases relating to the grant of planning permission by the respondent, as local planning authority, for housing developments in Canterbury. Ultimately, the claimant sought an order of the court quashing those decisions and then to persuade the respondent to reverse its earlier decisions by refusing planning permission.
The claimant had challenged those decisions by way of judicial review on the basis of alleged deficiencies in the respondent’s approach to an environmental impact assessment and an assessment under the Habitats Regulations. The High Court dismissed those applications: [2019] EWHC 1974 (Admin); [2019] EWHC 1975 (Admin).
Two applications for permission to appeal were refused and an application to reopen the order refusing permission to appeal was also dismissed. The judge found that the circumstances were not exceptional so as to fall within CPR 52.30(1); the arguments deployed in support of the application were no more than disagreements with the original orders. Further, it was not necessary to reopen the refusal of permission to avoid real injustice.
The claimant argued that the second application fell squarely within the requirements of CPR 52.30 because a second application was permissible “where the first is not responded to in a just and lawful manner”. She contended that the judge’s decisions were ultra vires and involved infringements of EU law which was sufficient to justify the court exercising its jurisdiction to reopen under CPR 52.30.
Held: The application was dismissed.
(1) Finality in litigation was a general rule of high public importance, particularly in planning cases, where there was a need for speedy determination of issues relating to development, and many people other than those directly connected were affected by the outcome. The Planning Court was established, as a specialist court, to achieve the necessary expedition in the determination of claims in planning and environmental cases. It would subvert the arrangements put in place if unsuccessful litigants could revive the same arguments repeatedly and without limit, thereby prolonging the proceedings, and delaying a certain and final outcome: Bhamjee v Forsdick [2003] EWCA Civ 799; [2004] 1 WLR 88 considered.
Rule 52.30 was drafted in highly restrictive terms. It had to be clearly established that a significant injustice had probably occurred and that there was no alternative effective remedy. The jurisdiction could only properly be invoked where it was demonstrated that the integrity of the earlier proceedings, whether at trial or at first appeal, had been critically undermined. The broad principle was that for an appeal to be reopened, the injustice that would be perpetrated if the appeal was not reopened had to be so grave as to overbear the pressing claim of finality in litigation.
(2) A final determination of an appeal, including a refusal of permission to appeal, would not be reopened unless the circumstances were exceptional. There had to be a powerful probability that a significant injustice had already occurred, and that reconsideration was the only effective remedy. The paradigm case was fraud or bias or where the judge read the wrong papers. Matters such as the fact that a wrong result was reached earlier, or that there was fresh evidence, or that the amounts in issue were very large or the point in issue was important, were not of themselves sufficient to displace the fundamental public importance of the need for finality. There had to be a powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined: Lawal v Circle 33 Housing Trust [2014] EWCA Civ 1514; [2015] 1 P & CR 12, Taylor v Lawrence [2002] EWCA Civ 90; [2002] 2 All ER 353 and R (on the application of Goring-on-Thames Parish Council v South Oxfordshire District Council [2018] EWCA Civ 860; [2018] PLSCS 76; [2018] 1 WLR 5161 applied.
(3) An application for reconsideration of a refusal of permission to appeal involved a two-stage process. The court had to ask: (i) whether the appeal judge who refused permission to appeal grappled with the issues raised by the application for permission; and, if he or she had done so, (ii) whether a mistake had been made that was so exceptional, wholly failing to understand a point that was clearly articulated, that it corrupted the whole process and, but for that error, there would probably have been a different result.
In the present cases, there was no question of the judge’s decisions being ultra vires. There was no injustice to the claimant involved in refusing her a fourth or fifth attempt to gain the result she sought, let alone the grave injustice required to overcome the pressing claim of finality in litigation. The decisions to grant outline planning permission were made in 2017 and 2018 respectively. All the claimant’s criticisms of the respondent’s decision-making had been comprehensively rejected for reasons that had been clearly explained. If any injustice would be caused by reopening the matter so long after the grants were made and acted upon, it would be to the interested parties, not the claimant.
Accordingly, the second applications to reconsider failed to meet any of the criteria set out in CPR 52.30. These were not exceptional cases. There had been no injustice to the claimant. There was no probability of a different result. There was never any tenable basis for an appeal and neither application for reconsideration was justifiable.
(Per curiam) Nothing in the present judgment precluded an application to reopen in those very rare circumstances where it was properly arguable that the test in CPR 52.30 was met. However, parties and their legal representatives should adopt a sensible and responsible approach and refrain from abusive proceedings.
Estelle Dehon and Rowan Clapp (instructed by Richard Buxton Solicitors) appeared for the claimant; Isabella Tafur (instructed by Canterbury City Council Legal Services) appeared for the first respondent; Andrew Tabachnik QC (instructed by Redrow Homes Ltd) appeared for the second respondent in the first appeal; Jenny Wigley (instructed by Howes Percival Solicitors) appeared for the second respondent in the second appeal.
Eileen O’Grady, barrister
