San Vicente & Anor v Secretary of State for Communities & Local Government & Ors

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:

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):

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.

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 TowerHamlets [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 further comment in Eco-Energy, at paragraph [27], that “the court is deprived of any ability to give further consideration of the proceedings”. However that comment, and the case of Payabi v Armstel Shipping Corporation [1992] QB 907 referred to by Buxton LJ, relate to the addition or substitution of a new party after the time for taking proceedings has expired. There is no reason to read this as preventing any and every amendment of the grounds of a s.288 claim after the expiry of the six week period. That some amendments may be allowed is clear from Hanily v Minister of Local Government and Planning [1951] 2 KB 917, Brightwell v Secretary of State for the Environment & Broadland DC (1996) 73 P&CR 418, Thurrock, and River Thames Society v First Secretary of State & Others [2006] EWHC 2829 (Admin).

The result is that I must decide this application to amend under CPR 17.1(2)(b). My discretion is wide and there is no specific guidance in the CPR. The Claimants point to Cobbold v Greenwich LBC, 9 August 1999, unreported, in which Peter Gibson LJ said:

“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.”

In any application to amend there is a threshold of merits. It is not a high one, but in a case such as this where substitution rather than addition of grounds is sought, it needs to be considered carefully. It was accepted that the threshold is effectively the same as that on an application for summary judgment. By CPR 24.2 (a)(ii) the court may give summary judgment if it considers that the “claimant has no real prospect of succeeding on the claim or issue”. The notes in the White Book make it clear that there must be a case which is better than merely arguable, but the claimants do not have to show that their case will probably succeed at trial. The court should not conduct a mini-trial. The test is not probability (as in a trial) but the absence of reality.

I shall consider first whether either of the proposed Amended Grounds pass this threshold of merits. Then I shall turn to consider prejudice, the public interest, and the exercise of discretion under CPR 17.1(2)(b).

On 24 October 2011 the Second Defendant local planning authority refused permission, setting out a number of reasons. Of these only one is relevant to this application, as follows:

“1.

The site lies outside the development limit where in accordance with Uttlesford Local Plan Policy S7 the countryside is to be protected for its own sake, the countryside will be protected from development unless it needs to be there or is appropriate to a rural area. The proposal would involve the erection of market housing which is not an appropriate form of development in the countryside, does not need to be there and would not protect the character of the countryside. The level of development proposed would be harmful to the character of the area. It therefore fails to comply with Policy S7 of the Uttlesford Local Plan.”

The Third Defendant submitted an appeal on 14 November 2011, expressing a preference for an inquiry. The First Defendant decided that it would be determined by an Inspector conducting a hearing, a more informal procedure. A number of written objections were received, including one from the First Claimant. Written Statements of Case were submitted on behalf of the Third Defendant appellant and the Second Defendant local authority.

The hearing was fixed for 11 April 2012 at the Council Offices in Saffron Walden, with a site visit the following day. Surprisingly, whilst the Second Defendant’s objections were voiced by two Councillors, no local resident objectors were present. It became clear that this was because the Second Defendant had failed to give proper notice of the hearing.

The Inspector asked the Second Defendant to contact the interested parties and invite the submission of further comments. Some were submitted. It was then decided that there should be a further hearing on 7 June 2012. Notice of this hearing was sent to the interested parties.

There was some email correspondence about the nature of this further hearing. On 16 May 2012 the agent for the Third Defendant sent an email to the Planning Inspectorate in response to a letter sent by email on 4 May 2012 which is not copied in the Bundle. There are a number of key passages in this email [my emphasis in bold]:

“The circumstances of this reconvened Hearing are unusual.

We consider it most important that the parameters for the new Hearing are clearly understood by all parties.

The intention is to clearly establish the rules to be followed at the reconvened Hearing so that the procedure remains fair to all.

The second paragraph of your letter [the letter of 4 May 2012 from the Planning Inspectorate] states that the intention is “to enable any interested parties to be able to listen to all the evidence and to be given the opportunity to comment at the Hearing”.

Can the Inspector confirm that the oral evidence presented by both parties at the original Hearing remains part of the evidenceon which he will take his decision?”

The response from the Planning Inspectorate on 18 May 2012 said that:

“it would not be in the interest of openness, fairness, and impartiality if the appeal decision in this case was based on proceedings which took place without the public being present. Therefore, in principle, it will be necessary to re-run the Hearing in the same form as the event which took place on 11 and 12 April, and the same agenda will apply. However, the procedure to be adopted will be dependent on the nature and extent of public attendance, and the Inspector will discuss the details with all those present at the start of the resumed event. In common with normal procedure, the main parties should rely on the case provided in their statements, and the Inspector will not expect new material to be put forward.”

The implication seems to be that, if local objectors did attend at the resumed hearing (or at least if they attended in any numbers and wished to be heard), the Inspector should start afresh and base his decision only on the evidence put forward at that resumed hearing.

None of this email correspondence was copied to the Claimants. When they attended on the further hearing date there was an agenda which, in all material respects, was the same as that produced for the first hearing. It sets out the main issues in the following way:

“Whether the site is an appropriate location for housing development, having regard to the policy of restraint outside the settlement area, and to the following specific points: 1) the effect on the character and appearance of the countryside, 2) whether the proposal represents a sustainable form of development in respect of accessibility to local facilities and public transport, 3) the effect on road safety and the free flow of traffic, and 4) whether any harm is outweighed by the need for housing in the area”

No objection was taken at the time, nor is any taken now, to this formulation of the main issues on the appeal.

What happened at the further hearing is a matter of factual dispute. I consider it right to decide this application on the basis of the Claimants’ case, despite the fact that the Third Defendant has exhibited some contemporaneous notes which conflict to some extent with the Claimants’ evidence.

According to the First Claimant’s witness statement, “other parties summarised the previous hearing but I found this hard to follow and I was also uncomfortable about raising points in our letters that may have been discussed in the previous appeal”. She says “I did not feel that these points [of objection] were being seriously dealt with and I seriously felt that we were wasting our time”. She says that she was given the impression that the Inspector “had already made up his mind” because so much time was spent discussing issues which assumed the grant of permission. She says that there was “little discussion of what I now understand to be the important housing supply issue”, and “certainly no discussion of the differing environmental impacts of the various development possibilities”.

Councillor Ranger was at the earlier hearing. His statement has been filed on behalf of the Claimants. He says that at the further hearing “The inspector stated at the commencement of proceedings that the agenda was identical to the April hearing and that each agenda item had been examined in great detail and he invited both sides to state their case quite briefly”. Mr Ranger did so for the Council. His statement continues:

“In the event he went through the agenda, described each issue, and described the case made by each side seeking confirmation from both sides that his description of the facts of the matter was correct. He did not allow the arguments to be played out in full. Residents were not given the opportunity, for example, to query housing numbers about which there had been very considerable discussion at the first hearing.”

Councillor Ranger continues in his statement to say that “in my opinion local people were disadvantaged by not having the chance of being present throughout … they “lost” considerably in terms of understanding what was being said in support of (and against) the appeal and the nuances of presentation and observation by all others present including the inspector”. He says that the June session “cannot in my opinion possibly be described as a “re-hearing” … it can better be described as a “mopping-up” session”. He says that both he and Councillor Mackman, who was also present throughout, agreed that it appeared to be perfunctory in style. The fact that the decision came so quickly after the June hearing suggested to him that the Inspector had purely “gone through the motions” in June.

It is important to note what the Claimants’ case is. Their argument is not that the further hearing could have made the procedure lawful but the Inspector failed to conduct it in a proper manner. Still less do they assert any bias on the part of the Inspector, or even appearance of bias, sufficient to invalidate an otherwise reasonable procedure. Their assertion is that the whole procedure was tainted once there had been a failure to notify local residents of the first dates. It would have been best to have a different Inspector. Even if a full rehearing by the same Inspector could have been fair, his taking account of what was said and seen on 11 and 12 April made the whole process irredeemably unfair, however conscientious he was. The fact that he did take account of the events of 11 and 12 April is clear from the Inspector’s reference to those dates in his Decision Letter, as well as the fact that the original hearing took two days whereas the resumed hearing dealt with evidence and a further site visit in a single day.

The Defendants submit that it is important to remember this was an informal process, not an adversarial trial. This is set out in the Planning Inspectorate booklet “Guide to taking part in planning appeals proceeding by a hearing – England” published in June 2011. In particular, the section headed “What happens at the hearing?” contains the following:

“The Inspector will open the hearing by explaining what the appeal is about. He or she will then go through some routine points, including asking who wants to speak.

The Inspector will usually give a summary of the appellant’s and the LPA’s cases, and say which topics will be discussed at the hearing. The Inspector leads the discussion. Hearings give everyone concerned the chance to give their views. Although hearings are informal, they must be orderly so that everyone involved can have a fair hearing.”

The Defendants say, correctly, that the Claimants can point to no reported authority in which failure to notify the public has led to a decision being struck down.

They refer me to Bushell v Secretary of State for the Environment [1981] AC 75, and in particular to the speech of Lord Diplock. He said that “what is a fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter”. But of course Lord Diplock was not there considering whether it would be fair inadvertently to exclude objectors from the hearing.

The Defendants further submit that the issues were simple, and correctly set out in Decision Letter. The resolution of these issues was a matter for the Inspector’s judgment having heard the objections from the District Council and the local residents, and himself visiting the site. In fact he visited the site twice.

I bear in mind also that lay people may often complain that they found it difficult to follow a hearing in court, but that does not make it unfair. It can simply be a product of unfamiliarity with the process. That same unfamiliarity with the process may also, however, account for the lack of any complaint at the hearing about the way in which it was being conducted. I note that Ms San Vicente’s partner wrote a letter raising this issue on 14 July 2012, immediately after the decision letter was issued.

It is not suggested that the agenda for the additional day omitted any relevant factor, nor that there is any inadequacy of reasons in the Decision Letter, nor that there is any reason relied on by the Inspector which was not raised on the final day. In reply to my request for confirmation of these matters Ms Graham Paul seemed at one point to be reviving Amended Ground 3 which she had expressly abandoned, but on further examination she was not in fact doing so.

The Claimants’ argument in the end was as to the appearance of fairness, and thus public confidence in the process: “Since they were not present throughout, the objectors have no way of knowing everything that was said, and thus what else may have been taken into account. They are left with a sense of grievance and unfairness which taints the whole procedure.”

It is therefore an argument that justice was not seen to be done. In other words, not only must a hearing “give everyone concerned the chance to give their views” (in the terms of the Guide) but also should give everyone concerned the chance to hear the views of others, which might sway an Inspector one way or the other. It is this latter aspect of a fair hearing, say the Claimants, which has not been achieved, still less seen to have been achieved, by the faulty procedure adopted.

In this case the decision was finely balanced. There is another site on the edge of Great Dunmow, to the north of the Ongar Road, where permission was also refused by the Council and that refusal was upheld on appeal. That appeal decision is dated 16 February 2012 and related to an application to build 73 dwellings. The main issues were the same as in the present appeal, although of course the assessment of their significance in fact would inevitably vary from site to site. I do not assume, nor do the Claimants contend, that it is a guide to the correct decision in the present case. It only shows that each decision involves a judgment on the competing submissions put forward, and that the difference between one site and another may be a very fine one. However, it is not surprising that the Claimants in the present case feel that the difference in the result may stem from the procedural failures which led to them being absent from the first two days of the appeal hearing.

I am bound to say that the overall impression I get, whilst not conducting a trial, or even a mini-trial, is that neither the Planning Inspectorate nor the Inspector really put their minds to considering what was to be the status of the initial hearing dates, and how the apparent injustice caused by the inadvertent exclusion of the objectors was to be remedied. There is a conflict between the approaches set out in bold type in paragraph 21 of this judgment, on the one hand “to enable any interested parties to be able to listen to all the evidence” and on the other hand that “oral evidence presented by both parties at the original Hearing remains part of the evidence on which he [the Inspector] will take his decision”.

That was left to the Inspector to decide on the further hearing date, and there was no advance notification of what was going to happen. For this reason, I suspect, it was not entirely clear to everyone what was going on at the resumed hearing. That impression is supported by the description in Councillor Ranger’s statement.

Whether that impression is proved to be right or wrong on closer examination, it cannot simply be brushed aside at this stage of the proceedings.

Section 288(5) allows this court to quash the decision if satisfied “that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements”, which requirements would include the requirement of due notice to objectors. Since this decision appears to have been finely balanced, I cannot say that there are no real prospects of the Claimants establishing substantial prejudice.

I therefore conclude that there is more than just an arguable case, there is a real prospect of success on Amended Ground 1. Subject to further considerations of prejudice to the Defendants and public interest, which I deal with below, permission to amend should be granted.

It is agreed that the proposed development falls within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, and their successor the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 which came into force on 24 August 2011. An EIA is required for Schedule 2 development if it is “likely to have significant effects on the environment by virtue of factors such as its nature, size or location”: see regulation 2(1).

By regulation 4(6) of the 2011 Regulations:

“Where a local planning authority or the Secretary of State has to decide under these Regulations whether Schedule 2 development is EIA development the authority or Secretary of State shall take into account in making that decision such of the selection criteria set out in Schedule 3 as are relevant to the development.”

Schedule 3 is headed “Selection Criteria for Screening Schedule 2 Development” and groups the criteria under three headings: characteristics of development, location of development, and characteristics of the potential impact.

Circular 2/1999, Environmental Impact Assessment, gave guidance as to the approach to be adopted in deciding whether an EIA is required for Schedule 2 development. Paragraph 33 refers to the three broad criteria set out in Schedule 3 of the Regulations, and continues:

“In the light of these, the Secretary of State’s view is that, in general, EIA will be needed for Schedule 2 developments in three main types of case:

(a)

for major developments which are of more than local importance;

(b)

for developments which are proposed for particularly environmentally sensitive or vulnerable locations; and

(c)

for developments with unusually complex and potentially hazardous environmental effects.”

Paragraph 34 continues as follows:

“The number of cases of such development will be a very small proportion of the total number of Schedule 2 developments.”

On 15 April 2011 the Second Defendant’s Head of Planning sent a letter to the Third Defendant’s agent which amounts to a ‘screening opinion’ in respect of the need for an EIA. This was before any planning application had been submitted. He noted that the proposal came within Schedule 2, and therefore needed to be assessed against the Schedule 3 criteria to establish whether or not it was likely to give rise to any significant effects on the environment by virtue of its nature, size or location. He concluded that, without details of the layout or boundary screening, it could not be said that the likely effect on the environment was significant enough to require an EIA. This provisional view is not subject to challenge in the current proceedings, as the Claimants say that an EIA was clearly required at later stages in the process. They found their challenge on the later failure by the Planning Inspectorate and/or the Inspector to demand one.

A second screening assessment was carried out by the First Defendant’s Planning Inspectorate on 31 January 2012. By this time the planning application had been refused by the Second Defendant Council for the reasons set out in paragraph 17 above.

This screening assessment notes that the proposal comes within Schedule 2 by virtue of its size. The checklist contains a number of relevant questions which were drawn to my attention:

In the first place the decision involves an exercise of judgment by the local planning authority or the Secretary of State. A statutory challenge will succeed if it can be shown that the decision was Wednesbury unreasonable. Ms Graham Paul, for the Claimants, submitted that the test was a stricter one, relying on Bowen-West v Secretary of State for Communities and Local Government [2012] Env LR 22. In that case the Court of Appeal considered a submission that European Union law requires a more intrusive judicial scrutiny of the assessment than the conventional Wednesbury one. Laws LJ, in paragraph [39], inclined to the view that this was not required, as the decision was a matter of fact and judgment, not proportionality.

The Claimants submit that, once the proposal had been rejected by the Second Defendant Council on the grounds of its effect on the countryside, it required a full EIA to consider those effects. When pressed, Ms Graham Paul accepted that it was a matter of fact and degree.

Here, the appeal concerned a single arable field on the edge of Great Dunmow. There were no exceptional wildlife or countryside issues. The key question concerned the visual impact of the site, which had to be balanced against the need for more housing in the area. Such visual amenity can be judged by the Inspector. It is not enough of itself to require an EIA. In the end it is a matter of judgment for the person carrying out the screening, and thereafter for the Inspector. It is significant that nobody suggested at the time that an EIA was required. No EIA seems to have been obtained for the other site on the edge of Great Dunmow referred to in paragraph 38 above.

In my judgment it is simply not arguable that the decision not to require an EIA was either irrational or obviously wrong. Even if a higher standard is required by European Union law, it is not arguable that this decision failed to meet it. Accordingly I refuse permission to amend the claim to add Amended Ground 2.

The First Defendant asserts prejudice because the Inspector is on leave and so the Secretary of State has not been able to file a witness statement from him. That may amount to some prejudice on this application, but no request was made to me for an adjournment to obtain such a witness statement. It cannot be substantial prejudice in relation to any substantive hearing, as there will still be time to obtain such a statement and have it admitted.

The Third Defendant claims prejudice will result from the delay, which will adversely affect its business as developers. This argument loses weight if only Amended Ground 1 is in issue. In any event I do not think it right to compare its position if the amendment is granted with what it would be if the amendment were refused. Certainly in that event the claim would fall and the development could be progressed. The proper comparison, in my judgment, is with its position if the amended claim had been made at the start of these proceedings. Looked at in this way the additional delay is comparatively small, and not sufficient to prevent an otherwise proper claim being put forward.

I turn now to consider the public interest, which is stressed by both First and Third Defendants. The point has been put in different words in various cases to which I have been referred, and which I do not need to set out at length. The basic principle is the same. Parliament has decreed a short time limit of only six weeks for challenges under s.288, and it is one which cannot be extended by the courts. The reason is to ensure certainty in the planning process, and this is a very important public interest consideration.

I agree, and have that well in mind. 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 original Grounds do not raise any challenge to the procedure adopted. Nor is there anything in the accompanying narrative to the application for a protective costs order which alleges, or even hints at, a failure to give a fair hearing. It was raised in a letter dated 14 July 2012 from Mr Lloyd, the partner of the First Claimant, to the Second Defendant District Council, but was not repeated in this claim prior to the application to amend.

Nevertheless, for the reasons set out above, the Claimants have real prospects of success in challenging the decision on the ground of procedural unfairness. I do not consider that any delay or further expense outweighs the need for public confidence in the planning process. There is no, or no sufficient, prejudice to the Defendants to justify the refusal of permission. In my judgment permission should be granted to the Claimants to raise Amended Ground 1 in these proceedings.