R (George Wimpey UK Ltd) v Tewkesbury Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Dyson,Lord Justice Lloyd
Judgment Date24 Jan 2008
Neutral Citation[2008] EWCA Civ 12
Docket NumberCase No: C1/2007/0862

[2008] EWCA Civ 12

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

Insert Lower Court Judge Name here

Insert Lower Court NC Number Here

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Dyson and

Lord Justice Lloyd

Case No: C1/2007/0862

Between:
M A Holdings Limited
Appellant
and
The Queen Of The Application Of George Wimpey Uk Ltd
First Respondent/Claimant
and
Tewkesbury Borough Council
Second Respondent/Defendant

Robin Purchas QC and James Neill (instructed by Messrs Dechert LLP) for the Appellant

Peter Village QC and Andrew Sharland (instructed by Messrs Berwin Leighton Paisner LLP) for the First Respondent/Claimant

Zoe Leventhal (instructed by [ ]) for the Second Respondent/Defendant

Lord Justice Dyson
1

On 15 January 2008, we gave MA Holdings Limited (“MA”) permission to appeal the decision of Wyn Williams J dated 3 April 2007 in George Wimpey UK Limited (“Wimpey”) v Tewkesbury Borough Council (“the Council”) [2007] EWHC 628 (Admin). We said that we would give our reasons in writing later. These are my reasons. We reserved our reasons because an issue of jurisdiction was raised as to whether MA could appeal in this case although it had not been a party to the proceedings in the court below. This is an issue on which there is no previous authority post the introduction of the CPR.

2

Since 6 August 2002, MA has been the owner of a site in Leckhampton Lane, Shurdington, Gloucestershire (“the Site”). On 10 April 2006, the Council adopted the Tewkesbury Borough Local Plan (“the Local Plan”) after a substantial process of consultation. The Site was shown in the Local Plan as allocated for residential development. At all material times, Wimpey has been the owner of land to the north of Bishops Cleeve, Gloucestershire known as “Homelands Farm”. This site was not allocated for residential development on the Local Plan.

3

In May 2006, Wimpey issued proceedings under section 287 of the Town and Country Planning Act 1990 as a party aggrieved by the allocation in the Local Plan. It sought to quash the Council's decision to adopt the Local Plan and also sought judicial review of the decision. The particular aspects of the plan to which Wimpey objected were the allocation for residential development of the Site and of another site at M & G Sports Ground. The proceedings were served on and opposed by the Council. MA was not served and did not apply to be joined as a party. Wyn Williams J allowed Wimpey's application under section 287 of the 1990 Act and dismissed the judicial review claim. He held that the decision to allocate the Site for residential development was irrational in that the Council had failed to have regard to the policy guidance contained within PPG3 and the draft guidance contained in PPSHe also held that the Council had failed to give adequate reasons for its decision in relation to the allocation of the Site. He ordered the parts of the Local Plan which pertained to the Site and the M & G Sports site to be quashed.

4

The Council decided not to appeal. But MA wishes to appeal and has served a notice of appeal setting out detailed grounds of appeal. Wimpey submits that the appeal has no real prospects of success and that permission to appeal should be refused. But it has taken a threshold objection to the application. It says that the court has no jurisdiction to allow MA to appeal in any event since it was not a party to, and took no part in, the proceedings before the judge. Alternatively, it submits that, if there is jurisdiction to allow MA to appeal, this jurisdiction should only be exercised in exceptional circumstances and there are no such circumstances in the present case.

5

The history of the interest of MA and its associated companies in the Site is set out in some detail in two witness statements made by Mr True, a solicitor employed by Dechert LLP who has the general conduct of the appeal on behalf of MA. It is sufficient to say that the beneficial ownership of the freehold of the Site vested in MA by a deed of transfer dated 6 August 2002. On 10 March 2006, MA granted David Wilson Homes Limited an option to purchase the Site, but this option has not been exercised.

6

It is not in dispute that MA was at all material times aware of the Wimpey proceedings. Representatives of MA and its associate companies were present in court throughout the proceedings. A draft judgment was made available to Wimpey and the Council (but not to MA) on 22 March 2007. Judgment was formally handed down on 3 April when a representative of MA's consultants was in court. No application was made by the Council or MA to the judge for permission to appeal.

7

Mr True says that, following the judge's decision, MA's adviser (Martin Dawn Plc) and its planning consultant (The Barton Willmore Partnership) made a number of enquiries of the Council to elicit whether it intended to seek permission to appeal. Mr True was told by both of them that, despite several enquiries, they had not been able to establish the Council's position. On 19 April, he telephoned the Council. He was told by Mr David Jones, the Head of Development Control, that the Council had decided not to appeal.

8

Mr Robin Purchas QC submits that (i) the court has power to grant permission to appeal although MA was not a party in the court below, since it is an “appellant” within the meaning of CPR 52.1(3)(d) or alternatively, the court has such power under its inherent jurisdiction and (ii) this power should be exercised in the circumstances of this case. Before I deal with these submissions in detail, I should make some preliminary observations.

Some preliminary observations

9

It would be surprising if the effect of the CPR were that a person affected by a decision could not in any circumstances seek permission to appeal unless he was a party to the proceedings below. Such a rule could work a real injustice, particularly in a case where a person who was not a party to the proceedings at first instance, but who has a real interest in their outcome, wishes to appeal, the losing party does not wish to appeal and an appeal would have real prospects of success.

10

Moreover, in the pre-CPR era the court had jurisdiction to grant leave to appeal to a person adversely affected by the first instance decision. The position at that time was summarised at para 59/3/3 of the 1999 edition of the Supreme Court Practice which stated: “….in accordance with old Chancery practice, any person may appeal by leave (obtained on an ex parte application to the Court of Appeal), if he could by any possibility have been made a party to the action by service.” Authority for this proposition included Re B (an infant) [1958] 1 QB 12. Lord Evershed MR said at p 17:

“…But, in any event, in my judgment, the general jurisdiction conferred upon this court by R.S.C., Ord. 58, would suffice if it could not properly be said that the mother was here a “party” to the proceedings within the meaning of section 105 of the County Courts Act, 1934. According to the note on p.1244 of the Annual Practice, 1957 ed., it is said: “But in addition, in accordance with old Chancery practice, any person may appeal by leave (obtained on ex parte motion to the Court of Appeal) if he could by possibility have been made a party to the action by service”; and a number of cases are cited. There cannot be any doubt that by possibility the mother could have been made a party, in the strict sense, by being a respondent to the application and, in fact, in the present case leave was given by this court for the mother to bring the matter here. I, therefore, am satisfied in this case that there is jurisdiction in this court to hear and determine the question of the validity and propriety of the order of February 25 as upon an appeal.”

11

In Warren v Uttlesford District Council [1996] COD 262, Judge J considered a case in which a third party sought to join in proceedings at first instance under section 287 of the 1990 Act. The proceedings were governed by RSC Ord 94. Judge J noted that Ord 94 did not contain provisions equivalent to Ord 53 r 5(3) and 9(1) for those “directly affected” and for a “person who desires to be heard”. A summary of his judgment is to be found in [1996] COD 262 in these terms:

“In general terms there was no doubt that the company was interested in the outcome of the proceedings and that, from its point of view, it was essential that the application under section 287 should fail. That section was not, however, concerned with private law litigation between parties but with issues of public law in accordance with statutory provisions. It was to be noted that in R.S.C. Order 94, which was directly concerned, interalia, with applications under the 1990 Act, there were no equivalent provisions to those to be found in Order 15, rule 6(2). Moreover, Order 94 likewise lacked any provision which could be equated with applications for judicial review under Order 53 where rule 5(3) and rule 9(1) made provision respectively for those “directly affected” and for a person who “desires to be heard”. Section 287 did not involve private litigation and did not amount to a cause or matter under Order 15 rule 6(2)(b). The issue was the validity of the planning decision reached by the planning authority. Had it been thought appropriate for proceedings under section 287 to include an entitlement in...

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