Town and Country Planning Act 1990 – Challenge to planning decision under section 288 – Amendment of grounds after expiry of six-week time limit – Amendment seeking to substitute allegation of procedural irregularity in place of impermissible merits challenge – Whether court having power to permit amendment – Whether amendment to section 288 challenge governed by CPR 17.1(2)(b) or more limited power under CPR 17.4 – Amendment ordered under CPR 17.1(2)b) – Appeal dismissed
In August 2012, the respondents issued proceedings, under section 288 of the Town and Country Planning Act 1990, challenging a decision of the appellant’s planning inspector to grant planning permission for a development of up to 100 houses. The six-week time limit for bringing such a challenge, under section 288(3), expired the following day.
In October 2012, the appellant applied for summary judgment against the respondents, seeking to have their claim dismissed on the ground that it impermissibly challenged the merits of the planning decision. The respondents applied to amend their claim by substituting new grounds, including an allegation that the decision was vitiated by procedural irregularity. An issue arose as to whether the court’s power to order amendments arose under CPR 17.1(2)(b), which conferred a wide discretion in that regard, or under CPR 17.4, which, in cases where it applied, permitted amendment only if the new claim arose out of the same or substantially the same facts as an existing claim.
In the court below, the deputy judge took the view that CPR 17.4 did not apply since the pre-conditions in CPR 17.4(1) were not met; he held that the six-week period imposed by section 288(3) of the 1990 Act was not a period of limitation under the Limitation Act 1980 or “any other enactment which allows such an amendment, or under which such an amendment is allowed” within the meaning of that provision. He therefore dealt with the amendment under CPR 17.1(2)(b) and decided to allow it. He took into account that the planning decision had been finely balanced, there was a more than arguable case on procedural irregularity, the amendment would cause no substantial prejudice to the developer and the public interest required the planning process to be seen to be fair: see [2012] EWHC 3585 (Admin).
On appeal from that decision, the appellant contended that CPR 17.4 applied since a statute should be held to allow amendments if it did not actually prohibit them.
Held: The appeal was dismissed.
(1) Provided that a challenge under section 288 of the 1990 Act was brought within the applicable six-week period, the court had jurisdiction to permit an amendment by introducing new grounds after that period expired: Hanily v Minister of Local Government and Planning [1951] 2 KB 917, Brightwell v Secretary of State for the Environment (1996) 73 P&CR 418; [1997] 2 PLR 38 and Thurrock District Council v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 128; [2001] 3 PLR 14 considered. It was appropriate that the position should be similar in that regard to planning appeals under section 289 of the Act and public law challenges by way of judicial review, on which late amendments were permitted by CPR 52 and CPR 54 respectively.
(2) Amendments to a section 288 challenge were not governed by CPR 17.4 since the six-week limitation period prescribed by section 288(3) was not a relevant limitation period for the purposes of that provision. CPR 17.4 was concerned with periods of limitation such as those specified in the Limitation Act 1980, which imposed a procedural, rather than a substantive, restriction: Payabi v Armstel Shipping, “The Jay Bola” [1992] QB 907 applied. Statutory bars such as that in section 288, on the other hand, imposed a substantive restriction since they deprived the court of jurisdiction to question the validity of a planning application after their expiry: Smith v East Elloe Rural District Council [1956] AC 736 and Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ 1566; [2005] 2 P&CR 78; [2005] 2 PLR 33 applied.
Moreover, there would be linguistic and substantive or policy difficulties in applying the considerations in CPR 17.4 in a public law context and carrying over the characterisation of a cause of action in private law to a public law cause of action. The considerations in play in public law proceedings would include the principle of legality and other considerations of public policy. To allow amendments to an in-time public law challenge only if the amended grounds relied on the same or substantially the same facts as the original grounds would result in inflexibility and could inhibit the ability of the court to vindicate the principle of legality. It might also prevent a consideration of some of the most serious grounds for impugning a decision if, while an in-time section 288 challenge was pending but after the expiry of the six-week period, information came to light suggesting that, for example, the inspector had taken a bribe or had been motivated by an improper purpose that was unconnected to the factual basis of the original grounds.
Furthermore, in the case of a public law challenge contending that a decision by a public body was ultra vires, otherwise flawed on public law grounds or vitiated on the restricted grounds specified in the statute, the material factual context was the circumstances of the decision itself: Hanily applied.
(3) The relevant jurisdiction of the court to substitute new grounds arose under CPR 17.1(2)(b). The court did not have to rely on its inherent jurisdiction, which might produce uncertainty: R (River Thames Society) v First Secretary of State [2006] EWHC 2829 (Admin) distinguished. There was a need for finality in planning contexts and it was important to dispose of planning challenges with expedition. However, in view of the shortness of the six-week period, it was likely that any amendment to a challenge launched within that period would be made outside it. Once proceedings were on foot, the developer and third parties knew that they could not rely on the validity of the challenged decision until those proceedings were concluded. If an amendment were sought at that stage, the important factor was the impact of that amendment on the defendant and other interested parties and on the timetable for the disposal of the case. In the instant case, the deputy judge had properly considered both the issue of prejudice to the developer from the delay and the public interest, including the importance of ensuring certainty in the planning process. The amendment allowed consideration to be given to the only seriously arguable point in the case and it was appropriate, where the additional delay to the developer was comparatively small, that the substantial issue should be properly settled by the court’s adjudication.
Richard Kimblin (instructed by the Treasury Solicitor) appeared for the appellant; Annabel Graham Paul (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the respondents.
Sally Dobson, barrister
San Vicente and another v Secretary of State for Communities and Local Government
Town and Country Planning Act 1990 – Challenge to planning decision under section 288 – Amendment of grounds after expiry of six-week time limit – Amendment seeking to substitute allegation of procedural irregularity in place of impermissible merits challenge – Whether court having power to permit amendment – Whether amendment to section 288 challenge governed by CPR 17.1(2)(b) or more limited power under CPR 17.4 – Amendment ordered under CPR 17.1(2)b) – Appeal dismissedIn August 2012, the respondents issued proceedings, under section 288 of the Town and Country Planning Act 1990, challenging a decision of the appellant’s planning inspector to grant planning permission for a development of up to 100 houses. The six-week time limit for bringing such a challenge, under section 288(3), expired the following day.In October 2012, the appellant applied for summary judgment against the respondents, seeking to have their claim dismissed on the ground that it impermissibly challenged the merits of the planning decision. The respondents applied to amend their claim by substituting new grounds, including an allegation that the decision was vitiated by procedural irregularity. An issue arose as to whether the court’s power to order amendments arose under CPR 17.1(2)(b), which conferred a wide discretion in that regard, or under CPR 17.4, which, in cases where it applied, permitted amendment only if the new claim arose out of the same or substantially the same facts as an existing claim.In the court below, the deputy judge took the view that CPR 17.4 did not apply since the pre-conditions in CPR 17.4(1) were not met; he held that the six-week period imposed by section 288(3) of the 1990 Act was not a period of limitation under the Limitation Act 1980 or “any other enactment which allows such an amendment, or under which such an amendment is allowed” within the meaning of that provision. He therefore dealt with the amendment under CPR 17.1(2)(b) and decided to allow it. He took into account that the planning decision had been finely balanced, there was a more than arguable case on procedural irregularity, the amendment would cause no substantial prejudice to the developer and the public interest required the planning process to be seen to be fair: see [2012] EWHC 3585 (Admin).On appeal from that decision, the appellant contended that CPR 17.4 applied since a statute should be held to allow amendments if it did not actually prohibit them.Held: The appeal was dismissed. (1) Provided that a challenge under section 288 of the 1990 Act was brought within the applicable six-week period, the court had jurisdiction to permit an amendment by introducing new grounds after that period expired: Hanily v Minister of Local Government and Planning [1951] 2 KB 917, Brightwell v Secretary of State for the Environment (1996) 73 P&CR 418; [1997] 2 PLR 38 and Thurrock District Council v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 128; [2001] 3 PLR 14 considered. It was appropriate that the position should be similar in that regard to planning appeals under section 289 of the Act and public law challenges by way of judicial review, on which late amendments were permitted by CPR 52 and CPR 54 respectively.(2) Amendments to a section 288 challenge were not governed by CPR 17.4 since the six-week limitation period prescribed by section 288(3) was not a relevant limitation period for the purposes of that provision. CPR 17.4 was concerned with periods of limitation such as those specified in the Limitation Act 1980, which imposed a procedural, rather than a substantive, restriction: Payabi v Armstel Shipping, “The Jay Bola” [1992] QB 907 applied. Statutory bars such as that in section 288, on the other hand, imposed a substantive restriction since they deprived the court of jurisdiction to question the validity of a planning application after their expiry: Smith v East Elloe Rural District Council [1956] AC 736 and Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ 1566; [2005] 2 P&CR 78; [2005] 2 PLR 33 applied.Moreover, there would be linguistic and substantive or policy difficulties in applying the considerations in CPR 17.4 in a public law context and carrying over the characterisation of a cause of action in private law to a public law cause of action. The considerations in play in public law proceedings would include the principle of legality and other considerations of public policy. To allow amendments to an in-time public law challenge only if the amended grounds relied on the same or substantially the same facts as the original grounds would result in inflexibility and could inhibit the ability of the court to vindicate the principle of legality. It might also prevent a consideration of some of the most serious grounds for impugning a decision if, while an in-time section 288 challenge was pending but after the expiry of the six-week period, information came to light suggesting that, for example, the inspector had taken a bribe or had been motivated by an improper purpose that was unconnected to the factual basis of the original grounds.Furthermore, in the case of a public law challenge contending that a decision by a public body was ultra vires, otherwise flawed on public law grounds or vitiated on the restricted grounds specified in the statute, the material factual context was the circumstances of the decision itself: Hanily applied.(3) The relevant jurisdiction of the court to substitute new grounds arose under CPR 17.1(2)(b). The court did not have to rely on its inherent jurisdiction, which might produce uncertainty: R (River Thames Society) v First Secretary of State [2006] EWHC 2829 (Admin) distinguished. There was a need for finality in planning contexts and it was important to dispose of planning challenges with expedition. However, in view of the shortness of the six-week period, it was likely that any amendment to a challenge launched within that period would be made outside it. Once proceedings were on foot, the developer and third parties knew that they could not rely on the validity of the challenged decision until those proceedings were concluded. If an amendment were sought at that stage, the important factor was the impact of that amendment on the defendant and other interested parties and on the timetable for the disposal of the case. In the instant case, the deputy judge had properly considered both the issue of prejudice to the developer from the delay and the public interest, including the importance of ensuring certainty in the planning process. The amendment allowed consideration to be given to the only seriously arguable point in the case and it was appropriate, where the additional delay to the developer was comparatively small, that the substantial issue should be properly settled by the court’s adjudication.Richard Kimblin (instructed by the Treasury Solicitor) appeared for the appellant; Annabel Graham Paul (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the respondents.Sally Dobson, barrister