In Secretary of State for Communities and Local Government v. Vicente & Anor  EWCA Civ 817 the Court of Appeal has helpfully removed one procedural obstacle from the path of those aggrieved by a grant of planning permission by an Inspector on appeal.
Setting the scene
- The aim of planning control is to regulate the development of land from the standpoint of the public interest as opposed to that of private interest. For example, building houses on a green field may, in a particular case, be thought objectionable by, for instance, members of the public. Vicente is one such case which concerns a field of 10 acres on the edge of Great Dunmow, in Essex. Taylor Wimpey UK Ltd. wants to build 100 houses there. A body of the residents of Great Dunmow believe that the benefits of the proposal are outweighed by its detriments.
- Planning officers of Uttlesford District Council thought that the balance favoured permission and recommended approval. The Council’s planning committee disagreed; in short, because local plan policy favoured the protection of the countryside, and it refused permission on 24 October 2011. On 14 November, Taylor Wimpey exercised its right to appeal to the Secretary of State for Communities and Local Government pursuant to section 78 of the 1990 Act, expressing a preference for a public inquiry.
- Not for the first time, in the author’s experience, things began to go wrong when the Secretary of State, via the Planning Inspectorate, decreed that, rather than a public inquiry, the appeal would be determined by an informal hearing (the clue is in the name).
- The hearing was fixed for 11 April 2012, at the Council’s offices. There were, remarkably, no resident objectors present. Upon inquiry it transpired that this was because the Council – whose job it was – had failed to give proper notice of the hearing. Accordingly, a further hearing was arranged for 7 June 2012, and due notice given to the interested parties.
- Correspondence then ensued between Taylor Wimpey and the Planning Inspectorate about “the nature of the further hearing.” In short, the Planning Inspectorate recognised (perhaps not surprisingly) that openness, fairness and impartiality required a “re-run”.
- What transpired at the re-run was a matter of controversy between the parties. The essence of the residents’ complaint was that the Inspector appeared to them to have approached his task “with a closed mind” and was merely “going through the motions.” By decision letter dated 12 July 2012, the Inspector allowed the appeal, granting planning permission.
The legal challenge
- For the person “aggrieved” and desirous of questioning the validity of a planning decision first identifying and then following the correct procedural path, whilst adhering to the relevant time limits, is not always straightforward. For example, it is not unknown for those professionally involved with the planning system to confuse section 288 of the 1990 Act (proceedings for questioning the validity of other orders, decisions, and directions) with section 289 (appeals to the High Court relating to enforcement notices and s. 207 notices (trees)) – often colloquially known as “statutory judicial review”; the procedure under each being different.
- In the event, on 22 August 2012, just before the expiry of the six-week period for challenge, Ms San Vicente and Mr Carden acting in person were able to issue a claim form – in essence a challenge to the planning merits of the decision. They did not identify either an alleged error of law, or a defect in the procedure adopted.
- At first instance when the case - San Vicente & Anor v. Secretary of State for Communities and Local Government & Others  EWHC 3585 came on for hearing on 23 November 2012, Taylor Wimpey, not surprisingly, wished to be joined (judgment 12 December 2012). Meanwhile the Claimants had instructed Richard Buxton planning and environmental solicitors, who sought permission to amend the claim by the substitution of three new grounds of challenge – in short, that the decision to grant planning permission was vitiated by reason of procedural unfairness and therefore unlawful.
- The key issue before the Court was whether or not to grant permission to amend . This, in turn, depended upon a consideration of the Civil Procedure Rules (CPR) generally, and CPR Pt 17 particularly, as well as broader questions concerning the relationship between private and public law litigation.
- The Secretary of State sought to resist the proposed amendment relying upon what could, perhaps fairly, be characterised as a technical argument which the deputy Judge, Mr Philip Mott Q.C. did not accept . The argument was essentially this. First, section 288(3) imposes a “rigid” six week time limit for making an application. Secondly, the power of the court to permit amendments to a statement of case pursuant to Pt 17 is subject to r. 17.4. Thirdly, r. 17.4 states:
“(1) This rule applies where –
(a) a party applies to amend his statement of case in one of the ways mentioned in this rule; and
(b) a period of limitation has expired under –
(i) the Limitation Act 1980; or ….
(iii) any other enactment which allows such an amendment, or under which such an amendment is allowed.
(2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.”
Fourthly, rule 17.4 applied and the special conditions were not met. Thus, the court had no jurisdiction to permit the amendment.
- Taylor Wimpey sought the same result but argued for it by a different route . It argued that the earlier Court of Appeal decision in Eco-Energy (GB) Ltd v. First Secretary of State  2 P & CR 5 on similar wording in CPR 19.5(1)(c) – to the effect that r. 17.4 “might be applicable”, was binding. As the time limit under s. 288 was not within the compass of it accordingly, so it contended, the court had no jurisdiction to consider amendment once, as in this case, the six week time limit has elapsed. The deputy judge also rejected that line of argument.
- The deputy Judge held that he must decide the application to amend under CPR 17.1(2)(b) . The Claimants pointed to the well-known principle (in essence, that “substance”, generally speaking, trumps “form”) as formulated by Peter Gibson LJ in Cobbold v. Greenwich LBC:
“Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party caused by the amendment can be compensated for in costs, and the public interest in the administration of justice is not significantly harmed.”
After considering the merits, prejudice, the public interest, and the exercise of discretion under CPR 17.1(2)(b) he concluded as to merits , prejudice – small , and public interest [58/9] – before reaching his overall conclusion that the Claimants should be given permission to add ground 1 – procedural unfairness to their claim .
- The Secretary of State was not satisfied and appealed. On 5 July 2013 the Court of Appeal dismissed the appeal. In giving the leading judgment Beatson LJ concluded that the essential decision that the additional delay was comparatively small and not sufficient to prevent an otherwise proper claim being put forward was :
“… not only well within his [the deputy judge’s] discretion, but, in my judgment, correct.”
- The Court of Appeal expressly referred to the problems which arise in the application to public law proceedings of provisions of the CPR designed with ordinary private law civil litigation in mind. In comparison to the generous limitation periods in the latter, the shortness of the six week period applicable to an aggrieved person seeking justice under section 288 of the 1990 Act inevitably means that there are likely to be many cases where, whilst a challenge may be launched within that period, proposed amendments may well be made outside of it.
- Pending possible further consideration by the Rules Committee, litigants who find themselves in the same position as Ms Vicente and Mr Carden have a helpful authority to pray-in-aid.
- As an interesting post script, according to the case comment  J.P.L. Issue 12 p. 1531, when the substantive hearing came on before Collins J. he quashed the Inspector’s decision on the basis of both the appearance of unfairness and actual unfairness. Stern advice was also apparently given to the Planning Inspectorate that where there had been such procedural short-comings a new Inspector should be appointed in order to ensure that there could be no suggestion of unfairness.