Sandra San Vicente and Another v Secretary of State for Communities & Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Philip Mott QC |
| Judgment Date | 12 December 2012 |
| Neutral Citation | [2012] EWHC 3585 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8954/2012 |
| Date | 12 December 2012 |
[2012] EWHC 3585 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Mott QC
sitting as a Deputy High Court Judge
Case No: CO/8954/2012
Annabel Graham Paul (instructed by Richard Buxton) for the Claimants
Richard Kimblin (instructed by Treasury Solicitor) for the First Defendant
Stephen Whale (instructed by Berwin Leighton Paisner) for the Third Defendant
Hearing dates: 23 November 2012
The Claimants are residents of Great Dunmow, in Essex. They instigated a claim under the provisions of section 288 of the Town and Country Planning Act 1990. They seek to challenge the decision of the Secretary of State for Communities and Local Government to grant planning permission on appeal to Taylor Wimpey UK Limited. The permission relates to a field of about 4 hectares (10 acres) on the edge of Great Dunmow. The grant is of outline permission to erect up to 100 new houses on the site, south of the Ongar Road. The developer's application was first submitted to the Uttlesford District Council, as local planning authority. Its planning officers recommended approval. The planning committee of the Council thought otherwise and refused permission. The developer appealed and the Inspector allowed the appeal. His decision is dated 12 July 2012.
The Claim Form in these proceedings was issued on 22 August 2012 by the Claimants acting in person. It set out the Details of Claim as follows:
"Incorrect decision of the Planning Inspectorate ref APP/C1570/A/11/2164898/NWF decision [sic] to allow outline planning permission on land south of Ongar Road, Gt Dunmow, Essex CM6 1EX.
The planning inspector mislead himself on the definition he applied to sustainability and [was] wrong to identify a sufficient benefit in housing to compensate for the harm of building on the countryside, and outside development limits."
On 28 August 2012 a further document was filed setting out what was described as "Skeleton Appeal" and an application for a protective costs order. It was headed with "Grounds" as follows:
"That the benefits arising from the proposed development do not outweigh the harm that would be caused by its conflict with local planning policies for the protection of the countryside.
That due consideration was not given to the NPPF [National Planning Policy Framework] and Localism and the fact that a Planning Inspector (J Head) had rejected a similar planning application in the Great Dunmow area, ref APP/C1570/A/11/2146338."
The proceedings come before me for four reasons:
i) The developer, Taylor Wimpey UK Limited, seeks to be joined as Third Defendant. This is not resisted and I order that they be so joined.
ii) The Claimants seek a protective costs order, that any costs ordered to be paid by them should be limited to the total sum of £5,000 and that any costs recovered by them should be without uplift (they being funded by a conditional fee agreement). This application was considered on paper by Collins J on 11 October 2012, but he declined to decide it on the material supplied. For administrative reasons it was not considered further before this hearing. The order is resisted by the First and Third Defendants, but for pragmatic reasons it was agreed by all parties represented before me that there should be an interim order in those terms limited to the conclusion of these applications. Any protective costs order thereafter should be subject to argument.
iii) The Third Defendant seeks summary judgment on the claim, which the First Defendant supports. The Claimants accept that the original Grounds are not sustainable, as they go to the merits of the decision, but seek to amend their claim as set out below.
iv) The Claimants apply for permission to amend their claim by substituting new grounds. The Amended Statement of Grounds and submissions in support set out three new Grounds. Ms Graham Paul, appearing on behalf of the Claimants on these applications, does not seek permission on Amended Ground 3, but puts forward Amended Grounds 1 and 2.
In effect, therefore, the argument before me was concentrated on the Claimants' application to substitute two new Grounds, as follows (wording taken from the Amended Statement of Grounds):
i) The First Defendant'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.
ii) The First Defendant's decision was unlawful 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.
For reasons which appear hereafter I have concluded that permission to substitute these Grounds should be granted in respect of Amended Ground 1 but refused in respect of Amended Ground 2. The original Grounds fall away, as does the Third Defendant's application for summary judgment on those grounds, which was made before the application to amend the Grounds. In those circumstances it will be necessary to look again at the application for a protective costs order.
Because of the importance of the challenge to both sides, I set out my reasons in some detail below.
Permission to Amend — Principles
The Civil Procedure Rules Part 17 provides:
"17.1 —
(2) If his statement of case has been served, a party may amend it only —
(a) with the written consent of all the other parties; or
(b) with the permission of the court
17.3 —
(2) The power of the court to give permission under this rule is subject to —
(c) rule 17.4 (amendments of statement of case after the end of a relevant limitation period).
17.4 —
(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
(ii) … ; 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."
The First Defendant argues that Rule 17.4 applies and the special conditions are not met. I do not accept those submissions.
The rigid six week time limit imposed for bringing a claim under s.288 TCPA 1990 is not period of limitation under the Limitation Act 1980. Nor is it "any other enactment which allows such an amendment, or under which such an amendment is allowed": see the Court of Appeal decision in Eco-Energy (GB) Ltd v First Secretary of State [2005] 2 P&CR 5 on the similar wording in CPR 19.5(1)(c). Eco-Energy was apparently decided without the court being referred to Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions [2001] C.P.Rep. 55. Brooke LJ there expressed the view only that the provisions of Rule 17.4 "might be applicable" (paragraph [26]), and decided that they did not in fact apply for other reasons. I consider myself bound by the decision in Eco-Energy to hold that Rule 17.4 does not apply because the pre-conditions in paragraph (1) are not met.
Even if the pre-conditions were met, the effect of the amendments sought is not "to add or substitute a new claim". As Brooke LJ said in Thurrock at paragraph [27]: "From the outset the claimants had sought an order quashing the Inspector's decision to grant planning permission". So did these Claimants. The claim is the same; it is the way in which the Claimants seek to argue that claim that is substantially different. But that gives rise to the discretion under Rule 17.1(2)(b), not the more rigid requirement under Rule 17.4.
I should refer briefly to the decision in Islam v Secretary of State for Communities and Local Government & London Borough of Tower Hamlets [2012] EWHC 1314 (Admin). It does not appear that Eco-Energy was cited to the court. In addition, the claim was (or at least should have been) under s.289 because the Inspector was considering challenges to an enforcement notice. Such challenges can only be made on specified grounds under the Town and Country Planning Act 1990. The original claim and supporting documents made no reference to a challenge to the Inspector's decision under ground (c). It is not surprising, therefore, that the Judge concluded that an amendment to raise ground (c) would raise a new claim, nor that he refused permission for it. The result would have been the same whether he based that refusal directly on Rule 17.4 or simply used it as a guide to the exercise of his discretion under Rule 17.1(2)(b). I do not find it helpful on the question of whether Rule 17.4 applies in the present case.
The Third Defendant accepts that Eco-Energy is binding, and therefore that Rule 17.4 is inapplicable. Mr Whale argues instead that there is no jurisdiction to consider an amendment application once the six week period has expired. He founds this submission on Buxton LJ's...
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