Civil procedure – Abuse of process – Exclusivity – Claimant seeking declaration that proposed development constituted permitted development – Defendant local authority applying to strike out claim as abuse of process – Whether abuse of process to use CPR Part 8 procedure to procure declaration of exclusively public law rights – Application granted
The claimant sought a declaration that its proposed development at Sutton Park House, 15 Carshalton Road, Sutton, by a change of use from offices to residential, constituted permitted development, by reason of and pursuant to Class O of the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2015.
The defendant local authority had issued a direction under article 4 of the 2015 Order which, in its original form, would have removed the permission existing in favour of the putative developer. However, by December 2014, the article 4 direction had been modified by the secretary of state, so as to include an exception, the effect of which was to exclude from the area in respect of which general development rights had been, or would have been, removed, by reason of the article 4 direction “any building or land in relation to which prior approval… has been granted, or… is treated as granted before 29th January 2015”. The claimant sought to rely on that exception on the grounds that a prior approval for such a material change of use on the site had been granted in December 2014.
The proceedings were commenced even though a decision was pending in the claimant’s appeal against the defendant’s refusal of prior approval under section 78 of the Town and Country Planning Act 1990. Both sets of proceedings raised identical issues.
The defendant applied to strike out the claim as an abuse of process. It argued that the issue in question was exclusively one of public law and that it was a misuse of the Part 8 procedure for it to be used to procure a declaration of exclusively public law rights. Moreover, it was a misuse, or abuse, of the Part 8 process, or of process generally, to bring the current proceedings, when the same point was already in process of determination by the Planning Inspectorate and where, as here, the unsuccessful party could seek to challenge the decision of the Planning Inspectorate in the Planning Court, pursuant to section 288 of the 1990 Act.
Held: The application was granted.
(1) The construction of a local authority planning direction was quintessentially a question of public, rather than private, law. It was not a matter that applied, or operated, exclusively as between the claimant and the defendant but rather was one that affected, potentially and equally, a number of property owners, or putative developers in the area falling within the article 4 direction and who had the benefit of lapsed prior approvals. Nor was there any suggestion that the public law question raised was interlinked with, or related to, or was homogenised with any separate private law right, obtaining between the parties, upon which the claimant relied in support of its claim for declaratory relief.
(2) The purpose of the declaratory relief sought by the claimant, as to the construction of the article 4 direction, and the exception, was to establish that the decision of the defendant to refuse prior approval in respect of the development of the property, on the basis of the defendant’s construction of the exception, infringed the claimant’s right to exercise its public law right to carry out permitted development of and at the property.
The case fell squarely within the scope of the “exclusivity principle” arising from O’Reilly v Mackman [1983] 2 AC 237: the general rule that it was contrary to public policy, and an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law, to proceed by way of an ordinary action and by that means to evade the provisions of CPR 54 for the protection of such authorities.
(3) There was no sufficient private law interest raised in this case to justify the use of Part 8 proceedings. Exceptions to the exclusivity principle might arise, particularly where the challenged public law decision arose collaterally to an alleged infringement of private law rights. There had been developments, primarily in the area where private and public law rights overlapped and where private law disputes involved public bodies. However, there was nothing in those developments to undermine, or challenge, the core principle that purely public acts should be challenged only in public law proceedings. The issue raised in this case was purely as to the true construction, meaning and effect of the article 4 direction and was quintessentially a matter of public law. The fact that the defendant’s construction of the direction and its consequent refusal of prior approval for the claimant’s development had the effect of preventing that development, and thereby impairing the claimant’s use of the property, did not provide the claimant with a private law interest in that construction and refusal, or preclude the question of the meaning and effect of the direction from retaining its public law status: Trim v North Dorset County Council [2010] EWCA Civ. 1446 followed.
(4) The doubling up of the proceedings with the section 78 appeal was, in itself, an abuse of process. It could not be other than abusive, in circumstances where a properly constituted appeal tribunal was seised of an appeal, to bring parallel proceedings in respect of the very same point. The overriding objective, in the Civil Procedure Rules, applicable across both private and public law cases attached considerable weight to the proportionate use of the resources of the court. It could not be a proportionate use of those resources to bring parallel proceedings in the way that the claimant had done in this case, particularly where the tribunal proceedings were the appropriate proceedings to deal with the public law issue raised and where the current proceedings offended against the exclusivity principle.
Paul G Tucker QC and Sarah Reid (instructed by CMS Cameron McKenna Nabarro Olswang LLP) appeared for the claimant; Saira Kabir Sheikh QC (instructed by SLLP) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of T&P Real Estate Ltd v Sutton London Borough Council
