Judge allows claimants to replace grounds for planning challenge in full

A group of residents have been allowed to replace their original grounds for challenging a planning decision under s. 288 TCPA 1990 with an entirely new and unrelated ground after the rigid six-week time limit for bringing the claim.

The case of San Vicente & Carden v Secretary of State for Communities and Local Government, Uttlesford DC and Taylor Wimpey UK Limited [2012] EWHC 3585 (Admin) centres on the decision by the Secretary of State for Communities and Local Government to grant outline permission for the erection of up to 100 new houses on a site on the edge of Great Dunmow in Essex.

Uttlesford District Council’s planning officers had recommended approval, but its planning committee had thought otherwise. The developer, Taylor Wimpey, appealed and an inspector allowed that appeal.

The claimants, local residents of Great Dunmow, accepted that their original grounds for challenging the grant of planning permission were unsustainable, as they went to the merits of the decision.

They therefore sought to amend their claim to allege that the Secretary of State’s decision was unlawful:

• By reason of procedural unfairness, “namely the failure to ensure that all parties were notified of the hearing in accordance with the Town & Country Planning (Hearings Procedure) (England) Rules 2000 and having discovered a complete absence of notification of concerned residents, his failure to re-start the inquiry with a new Inspector”; and
• For failure to comply with the requirements of the 2011 EIA [Environmental Impact Assessment] Regulations, “namely in the way the project was screened not to have significant environmental effects such that EIA was not required”.

In considering whether to allow the amendments, the judge, Philip Mott QC (sitting as a Deputy High Court Judge), had to address the applicable principles of the Civil Procedure Rules and the conflicting authorities as to whether CPR 17.1(2)(b) or CPR 17.4 applies to substituting grounds in challenges under s. 288 of the Town & Country Planning Act 1990.

He concluded that he had to apply CPR 17.1(2)(b) (the court’s permission is required) and not the more rigid test in CPR 17.4 (a court may only allow an amendment whose effect will be to add or substitute a new claim if the new claim arises out of the same facts or substantially the same facts as the existing claim).

This is contrary to suggestions otherwise in Thurrock BC v Secretary of State for the Environment, Transport and the Regions [2001] C.P. Rep. 55 and the recent decision of Islam v Secretary of State for Communities and Local Government & London Borough of Tower Hamlets [2012] EWHC 1314 (Admin).

“The claim is the same; it is the way in which the claimants seek to argue that claim that is substantially different,” the judge said.

Philip Mott QC also dismissed the developer’s submission, based on dicta in Eco-Energy (GB) Ltd v First Secretary of State [2005] 2 P & CR 5, that the court has no jurisdiction to replace the grounds of a s. 288 challenge outside the six-week time period.

He said those comments related to the addition or substitution of a new party after the time for taking proceedings had expired. “There is no reason to read this as preventing any and every amendment to the grounds of a s. 288 claim after the expiry of the six-week period.”

The Deputy High Court judge ruled that permission should be granted in relation to the first amended ground (procedural unfairness) – where the claimants had real prospects of success in challenging the decision – but not for the second (EIA assessments).

The judge accepted that the reason for the short and rigid time limit was to ensure certainty in the planning process and that this was a very important public interest consideration.

However, he added: “The corollary is that the process must both be fair, and be seen to be fair, the first time around. Objectors to a planning application have no right of appeal on the merits as a developer does. For them s.288 is the only form of challenge and there is a vital public interest in ensuring public confidence in the fairness of the initial planning process.”

The judge also granted the claimants a protective costs order and refused the Secretary of State’s application for permission to appeal.

Annabel Graham Paul of Francis Taylor Building acted for the claimants, instructed by Richard Buxton.