The Court of Appeal has held that the service of a breach of planning condition notice is a "purely public" act, so the correct way of challenging such a notice is by way of judicial review proceedings. The Court struck out private law proceedings disputing the validity of the notice as an abuse of process. The case illustrates the application of the "exclusivity principle" in practice.
- The exclusivity principle requires that challenges to a public body's "purely public law" decisions or actions must take the form of judicial review proceedings. Relaxation of the principle would only be appropriate where there is an overlap with private law principles (such as contract and tort).
- The service of a breach of condition notice is a purely public law act to which the exclusivity principle directly applies. If private law proceedings are brought to challenge the validity of a notice, they may be struck out as an abuse of process.
- A claimant must have good reason to bring proceedings challenging a breach of condition notice out of time, as there is a strong public interest in the prompt resolution of any issue as to its validity.
In 2008, Mr Trim was served with a breach of condition notice by North Dorset District Council which related to a condition included in a planning permission granted in 1997. In December 2009 Mr Trim brought a claim for a declaration that (i) the notice was served more than 10 years after the alleged breach and (ii) consequently, the failure to comply with the condition as at the date of service of the notice was lawful because no enforcement action could be taken after the 10 year limitation period had expired.
The Council applied to strike out the claim as an abuse of process on the grounds that the appropriate means of challenge was judicial review, not private law proceedings. At first instance it was held that the issue of proceedings for a declaration did not constitute an abuse of process. The Council appealed to the Court of Appeal, which considered whether the case was caught by the so-called "exclusivity principle".
The exclusivity principle
The exclusivity principle means that in general it is an abuse of process to challenge the validity of public law actions or decisions other than by judicial review. The purpose of this principle is to ensure that a challenge to the validity of a decision of a public authority is brought swiftly, reflecting the particular need for certainty in the context of administrative decision-making.
Over time, a more flexible approach to the application of the principle has been adopted in some cases, for example in Roy v Kensington and Chelsea FPC, in which the House of Lords accepted that private law rights could be enforced by civil action, even though they might involve a challenge to a public law decision.
Arguments against the application of the exclusivity principle in Trim
There were 2 principal grounds of appeal. Firstly, it was argued that if the proceedings were struck out, Mr Trim would have no way to challenge the enforcement notice. This would result in the notice hanging over him indefinitely, leaving him in a procedural "limbo" in which he was unable to sell his property and subject to a potential criminal sanction for non-compliance. Secondly, it was argued that an application for judicial review would not be appropriate at this stage, as it risked failure due to delay. It was also argued that judicial review proceedings are inherently unsuitable for dealing with contested issues of fact, as would have been necessary in this case.
The Court of Appeal's decision
The Court of Appeal rejected Mr Trim's arguments, finding that the exclusivity principle was directly applicable in this case. The service of a breach of condition notice was a purely public law act, which did not require the more flexible approach that might be required where private (such as contract and tort) and public law principles overlap.
No lack of alternative remedy
The Court noted that the so-called "procedural limbo" in which the claimant found himself was entirely of his own making. Where a person who has been served with a breach of condition notice wishes to challenge it, he may either seek judicial review promptly to challenge the validity of the notice, or he may apply to the local planning authority under s. 73 of the Town and Country Planning Act 1990 to discharge the condition. The fact that the 10 year time limit for enforcement action applied in this case did not mean that the Court had a duty to assist the lawbreaker to bring himself within it: the rule is a "concession to illegality, not a reward for endurance".
Judicial review and factual disputes
The Court noted that the existence of factual disputes is not a reason in itself for avoiding judicial review as the Court at permission stage has sufficient powers to give any necessary directions regarding the examination of factual evidence.
Time limits and delay
The Court considered that there is a strong public interest in the validity of a breach of condition notice, if in issue, being established promptly and the strict time limits for bringing a judicial review claim were a reason for ensuring procedural exclusivity, not for relaxing it.
The trial judge had found that Mr Trim was justified in waiting before initiating proceedings until after the decision in a related appeal in January 2009. However, the Court of Appeal was unimpressed by Mr Trim's subsequent delay of almost a year in bringing the claim and found no good reason to extend time when the Council had made it clear it did not intend to withdraw the notice.
This case affirms the ongoing importance of the exclusivity principle, especially in a planning context, despite the relaxation of its application in some recent cases where private and public law principles may overlap. When challenging a decision of a public body, judicial review will generally be the appropriate route and an attempt to bring private law proceedings on a public law issue risks being struck out as an abuse of process. Potential claimants should remain mindful that a claim for judicial review should be brought promptly and in any event within 3 months, and should be aware that if an application to bring judicial review proceedings is not brought within this time-limit, it risks being refused for being out of time.
Trim v North Dorset District Council of Norden  EWCA Civ 1446