Inspector allowing appeals against enforcement notice – Council erroneously seeking leave to appeal under wrong statutory provision – Application for leave to amend claim form – Whether leave to be granted – Judge granting leave to amend – Civil Procedure Rules – Appeal dismissed
In July 1999 the claimant council served two enforcement notices on the second respondent in relation to land at King’s Farm, Parker’s Farm Road, Orsett, Essex. The first alleged an unlawful change of use from domestic and agricultural purposes to use for domestic purposes, as an airfield and for the storage of aircraft. The second alleged the unlawful creation of a hardstanding and concrete base, and the erection of a building on the concrete base.
An inspector allowed the second respondent’s appeals against the notices, concluding, in respect of the first notice, that the relevant material changes in use had occurred more than 10 years before service of the notice. He also granted planning permission, subject to various conditions, for the building complained of in the second notice, pursuant to his powers under section 177(1)(a) of the Town and Country Planning Act 1990.
The council’s right to appeal against the inspector’s decision on the enforcement notices was governed, under section 289 of the 1990 Act, by Ord 94 of r 12 of the Rules of the Supreme Court. That order gave the council 28 days, after the date upon which notice of the inspector’s decision had been given to the applicant, in which to seek leave to appeal. Under section 288 of the 1990 Act, the council also had an absolute right to challenge the inspector’s decision to grant planning permission, provided that the appeal was made within six weeks of the decision they sought to challenge.
In the event, both appeals were lodged at the High Court within 28 days of the inspector’s decision, in the form of a single application for permission to appeal pursuant to section 289(6) of the Act. At the outset of the hearing, the council sought permission to amend their claim form in respect of the appeal against planning permission, in order that that appeal might continue as an application for statutory review under section 288(1) of the Act. The judge granted leave to amend, holding that it would be unfair to deprive the council of the statutory right to appeal simply because of an error by their legal advisors.
Held: The appeal was dismissed.
1. The appeal raised a point of general importance in relation to the amendment of claims made in public law proceedings under Part 8 of the Civil Procedure Rules. The new originating procedure was so novel that, whether a challenge in the planning field was made to a decision susceptible of being quashed by the High Court, under section 288 of the Act, or to a decision on an enforcement notice appeal, under section 289, it was bound to be governed by Part 8, since both these types of proceedings were listed in Table 1 of section A of the practice direction that supplemented Part 8: see CPR 8.1(6) and paras 2.1(1) to (3) and A1 to A3 of section A of the practice direction.
2. For the appeal against planning permission to proceed under section 288, and not 289, of the Act, there had to be an amendment under r 17.4(1) of the Civil Procedure Rules, which related to “amendments to statements of case after the end of a relevant limitation period”. It would greatly inhibit the power of the court to deal with cases justly if the new rules meant that the council were to be denied the right to straighten out the formalities of a claim because they had erroneously launched it under the wrong section of the Act. The overriding objective of the new procedural code was to enable the court to deal with cases justly. The amendment did not have the effect of substituting a new claim, and the second respondent and its solicitors had known, when the erroneous claim was served on them, exactly what was being claimed and why. Accordingly, the judge had been correct to allow the amendment: Hannigan v Hannigan [2000] 2 FCR 650 and Cala Homes (South) Ltd v Chichester District Council [1999] 4 PLR 77 applied.
John Hobson QC and Clare Lockhart (instructed by Sharpe Pritchard, as agent for the solicitor to Thurrock Borough Council) appeared for the council; Stephen Hockman QC and Kevin Leigh (instructed by Jennings Son & Ash) appeared for the second respondent; the first respondent did not appear and was not represented.
Thomas Elliott, barrister
