England and Wales Court of Appeal (Civil Division) Decisions

Case No: C/2000/2247 QBCOF

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(Mr Nigel McLeod QC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 13th December 2000

LORD JUSTICE BROOKE:

1. This is an appeal by Mr Terry Holding, the Second Defendant, from a decision of Mr Nigel McLeod QC, sitting as a deputy high court judge, on 19th May 2000, to grant permission to the claimants, the Thurrock Borough Council, to amend their claim form in these proceedings, so that an application for permission to appeal, which had been commenced under Section 289(6) of the Town and Country Planning Act 1990 ("the 1990 Act"), could continue as an application for statutory review under Section 288(1) of that Act. The First Defendant, the Secretary of State for the Environment, Transport and the Regions, is taking no part in these initial proceedings, although he would wish to be heard in any substantive hearing.

2. These proceedings relate to land at King's Farm, Parker's Farm Road, Orsett, in Essex. The land in question comprises a dwelling, an airfield (including a runway), several hangars and associated buildings, and farm land. Mr Holding has owned the land and used it for personal and business purposes since the late 1970s. He flies from the site on business trips, and he also uses the site for flights to and from a house he owns in Guernsey. He has another home in Florida, to which he also flies, using his own aircraft. He keeps three aircraft at the site.

3. The claimant council is the local planning authority. On 15th July 1999 they took enforcement action when they served two enforcement notices against the use of the land and one of the buildings. By the first of these notices they alleged an unlawful change of use from domestic and agricultural purposes to use for domestic purposes and use as an airfield and the storage of aircraft. This is the subject-matter of what became known as Appeal 1. By the second notice they alleged the unlawful creation of a hardstanding and concrete base, and the erection of a building on that concrete base. Appeal 2 relates to the appeal against this notice. The hardstanding was created in front of the building in question and another building adjacent to it.

4. Mr Holding appealed against both notices, and a 3-day planning inquiry was held in relation to his appeals, which were both successful. Appeal 1 was allowed on the basis that the relevant material changes in the use of the land had occurred more than ten years before 15th July 1999 (the date of the notice). Appeal 2 was allowed on a different basis, in that the Inspector granted planning consent for the building, subject to various conditions, pursuant to his powers under Section 177(1)(a) of the 1990 Act.

5. As is well known, Sections 288 and 289 of the 1990 Act, as amended, contain two different routes to the High Court for challenging decisions in the planning field. Section 288(1) creates a power to question the validity of certain orders, decisions and directions made under the Act, and these decisions include a decision by the Secretary of State to grant planning permission pursuant to Section 177(1)(a) (see Sections 288(1)(b) and (4) and 284 (3)(e)). The power conferred by this section may be exercised as of right, but any application to the High Court must be made within six weeks from the date of the decision under challenge (Section 288(3)).

6. Section 289, on the other hand, is concerned principally with appeals to the High Court relating to enforcement notices. Section 289(1) and (6) provide, so far as is material, that:

"289(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice ... the local planning authority ... may, according as rules of court may provide, ... appeal to the High Court against the decision on a point of law ...

289(6) No proceedings in the High Court shall be brought by this section except with the leave of that Court ..."

7. At the material time the procedure for an application for permission to appeal to the High Court under Section 289 was governed by Order 94 Rule 12 of the Rules of the Supreme Court.

8. It follows that the claimant council was bound to seek permission under that rule to appeal against the Inspector's decision on Appeal 1. The rule provided that any such application "shall be made within 28 days after the date on which notice of the decision was given to the applicant". On the other hand, it had an absolute right to challenge the decision to grant planning permission on Appeal 2, provided that the relevant application was made within six weeks of the decision it sought to challenge.

9. In the event both challenges were lodged at the High Court within four weeks of the Inspector's decision in the form of a single application for permission to appeal against the Inspector's decision pursuant to Section 289(6). This application was listed for hearing on its merits as an application for permission to appeal before the deputy judge on 19th May 2000, but as soon as it came on for hearing, counsel for the claimants sought and obtained permission to amend the claim form to substitute, in respect of Appeal 2, an application for statutory review under Section 288. This is the decision which is impugned in these proceedings. In granting permission, the deputy judge said:

"In the present case there was an error by the planning authority's legal advisors as to what procedure should be followed. In reaching my decision, I look at the overriding objectives of the proceedings and of the legislation. The overriding objectives of the court proceedings are to do with fairness to all parties. In my judgment, it would be quite unfair to deprive the local authority of the statutory rights that they have, simply because of an error by their legal advisors, when the proceedings were put in hand at an appropriate point in time, and then it is the position that although, in form, there is a distinction between section 288 and 289, it is the fact that in terms of pragmatic substance there is little, if any, difference between the consequences of the decisions which are made in either proceedings.

In these circumstances, in my judgment it is entirely fair and right that there should be leave given to Mr Hobson to enable his clients to proceed under section 288."

10. This appeal raises a point of general importance in relation to the amendment of claims made in public law proceedings under Part 8 of the Civil Procedure Rules. I must explain, because the new originating procedure is so novel, that whether a challenge in the planning field is made to a decision susceptible of being quashed by the High Court under Section 288 of the 1990 Act or to a decision on an enforcement notice appeal under Section 289 of that Act, it is bound to be governed by Part 8, since both these types of proceedings are listed in Table 1 of Section A of the Practice Direction which supplements Part 8 (see CPR 8.1(6) and Practice Direction, paragraph 2.1(1) to (3) and Section A, paragraphs A1-A3).

11. As I have already said, the procedure in relation to an application under Section 289(6) was governed at the material time by RSC Order 94 Rule 12, as amended, which required an application to be made within 28 days after the date on which notice of the decision was given to the applicant. Further formal requirements are contained in Rule 12(2), which prescribes that the application should be filed at the Crown Office, together with the relevant decision, a draft appellant's notice, and a witness statement or affidavit verifying any facts relied on. Before these documents are filed, they must be served on the appropriate respondents (see Order 94 Rule 13(5)) together with the draft claim form.

12. This procedure is to be contrasted with the simpler procedure prescribed by RSC Order 94(1) (which governs, among other things, challenges under Section 288 of the 1990 Act), where the application is commenced by the issue of a claim form without any need for an application for permission.

13. On the present occasion, the claimants' solicitors followed the procedure prescribed by Order 94 Rule 12. The "Notice of Application for Permission to Appeal to the High Court under Section 289 of the Town and Country Planning Act 1990" was served and filed on 5th April 1990, 26 days after the date of the inspector's decision. It seeks permission to appeal and states that the grounds of the proposed appeal are set out in the draft claim form attached to the notice.

14. This draft claim form, incorrectly, resembles an ordinary claim form (Form N1) as opposed to a Part 8 claim form (Form N208). It contains the words: "Details of Claim: see overleaf". The Details of Claim, which were settled by counsel, are headed "In the Matter of Section 289 of the Town and Country Planning Act 1990", and start with the words "Pursuant to permission granted by the Honourable Mr Justice ... on the ... day of ... 2000 the Claimant seeks an order:

(i) that the decision of the First Respondent by his Inspector given by decision letter dated 10th March 2000 ... be quashed ..."

15. The grounds of the application are then stated. So far as they relate to Appeal 2, they represent a challenge to the planning grounds relied on by the Inspector when he decided to grant planning permission in relation to the matters complained of in the relevant enforcement notice.

16. The Notice of Application had stated that the claimants intended to rely upon a witness statement signed by one of their principal planning officers and its exhibited paginated bundle, a copy of which was lodged with the application. In paragraphs 4-7 of her statement, that officer gave evidence about certain happenings at the inquiry which were germane to the claimants' challenge to the Inspector's decision to grant planning permission in relation to the subject-matter of Appeal 2.

17. As I have said, the application for permission to appeal was listed before the deputy judge on 19th May 2000. On 11th May a witness statement was signed by Mr Holding's planning consultant which set out a different version of events at the inquiry to that set out by the claimants' witness, and the parties' counsel exchanged their skeleton arguments in advance of the hearing. The skeleton arguments, unsurprisingly, focused, so far as Appeal 2 was concerned, on the Inspector's grant of planning permission pursuant to Section 177(1)(a) of the 1990 Act. Mr Holding's advisers did not seek to challenge the Inspector's earlier dismissal of his application in relation to Appeal 2 for a decision in his favour pursuant to Section 177(1)(c) of the Act. He had made that application on the basis that planning permission was not in fact required for the building to which the claimants had taken exception when they served the enforcement notice to which that appeal related.

18. It appears that on 18th May, the day before the hearing, the same deputy judge had been involved in another case in which a similar point had arisen about the appropriateness of Section 288 procedure, as opposed to Section 289 procedure, for a challenge to an Inspector's grant of planning permission on an enforcement notice appeal pursuant to Section 177(1)(a) of the Act. This had come to the notice of the claimants' leading counsel by some means or other, and he told Mr Holding's leading counsel ten minutes before the hearing started of his intention to seek permission to amend. No adjournment was sought, and no point has been taken on this appeal about the lateness of this notice.

19. I have already set out in paragraph 9 of this judgment the short reasons given by the deputy judge from granting the application for permission to amend. The order that was drawn up, in its amended form, stated, so far as is material:

"Upon hearing ... Counsel on behalf of the above-named claimant for permission to amend the Application for the Appeal against the decision of the First Respondent's Inspector made by letter dated 10th March 2000 in respect of the second enforcement notice to proceed under Section 288 of the Town and Country Planning Act 1990

And upon hearing ... Counsel on behalf of the Second Respondent

It is ordered that permission to amend be granted."

20. What was being amended was not at all clear, whether one reads the transcript of the proceedings, the short judgment, or the court order. The claimants subsequently filed a new document called "Details of Claim", which was said to have been made pursuant to an order by the deputy judge (which does not appear to have been drawn up):

"giving permission for the appeal against the decision in the [letter dated 10th March 2000] to proceed under Section 288 of the Town and Country Planning Act 1990 and for the details of claim to be accordingly amended."

21. Since the deputy judge also granted the claimants permission to appeal against the Inspector's decision on Appeal 1, there followed a description of the orders being sought under Sections 289 and 288 respectively, and the grounds for the claimants' "application" under each head. This new document is headed, confusingly, "In the Matter of Section 289 of the Town and Country Planning Act 1990" although it now includes the (newly amended) substantive challenge under Section 288, for which permission was not required.

22. I have set out these procedural matters at some length because the whole of the argument before the deputy judge was based on principles derived from pre-CPR decisions. The existence of the Civil Procedure Rules, and the identification of the rules which governed this situation, were not mentioned at all in argument except for some very general references to "the approach under Woolf" and the "Woolf Report and ... the objective in litigation these days".

23. One of the great strengths of the Civil Procedure Rules is that they introduced the same form of initiating process for court proceedings across the board, so that the principles by which a "statement of case" can be amended are consistent across the board. For this reason, as this court has repeatedly said in CPR appeals since 26th April 1999 decisions of courts under the former procedural regime are very often not of much assistance in relation to decisions that have to be made under the new regime. I would add that on occasion they may be positively misleading.

24. The initiating process, then, was issued pursuant to Order 94 Rule 12 within four weeks of the Inspector's decision. For the challenge to the Inspector's decision to grant planning permission on Appeal 2 to proceed under Section 288, not Section 289, some part of that process would have to be amended. In order to determine what had to be amended, and the basis on which such an amendment might be made, I must return to the Civil Procedure Rules.

25. CPR Part 17 is headed "Amendments to Statements of Case". It contains four short rules and is accompanied by an equally short Practice Direction. By CPR 2.3(1) a "statement of case" means, for the purposes of the present appeal, "a claim form" and "includes any further information given in relation to [the claim form] voluntarily". In the present case the relevant statement of case was represented by the draft claim form and the Details of Claim "overleaf". These details represented further information given in relation to the claim form voluntarily, if they did not constitute an integral part of the claim form itself. The claim form was in draft because it was erroneously thought that permission was required before it could be issued. The accompanying application, which instituted the court process, was lodged less than four weeks after the decision sought to be impugned.

26. Because the draft claim form had been served, permission was required for any amendment to it (see CPR 17.1(2)). The first three rules in CPR Part 17 do not give any indication of the principles on which the court is to exercise its discretion to grant permission to amend (although CPR 1.1 and 1.2 are of course relevant). CPR 17.4, on the other hand, which relates to "amendments to statements of case after the end of a relevant limitation period", contains some guidance. CPR 17.4(1) and (2), which contain provisions which might be applicable in the present case, read:

"(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;

(ii) the Foreign Limitation Periods Act 1984;

(iii) section 190 of the Merchant Shipping Act 1995; or

(iv) any other statutory provision.

(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."

27. The amendment proposed in this case did not have the effect of adding or substituting a new claim, so far as the substance of the claim for relief was concerned. From the outset the claimants had sought an order quashing the Inspector's decision to grant planning permission on Appeal 2, and their grounds for seeking relief and the evidence filed in support of those grounds go exclusively to the reasons why they asserted that planning permission ought not to have been granted. In its substance their claim was for the relief available under Section 288 of the Act, which they were entitled to claim as of right provided that their application was lodged (as it was) within six weeks of the Inspector's decision. Are they, then, to be denied the right to straighten out the formalities of their claim because they have launched it erroneously under the wrong section of the Act? It would greatly inhibit the power of the court to deal with their case justly (CPR 1.1(1)) if this is indeed the effect of the new rules.

28. A comparable problem arose recently in a quite different field of law in Hannigan v Hannigan (CAT 18th May 2000). A widow wished to make a claim against her husband's estate under the Inheritance (Provisions for Family and Dependants) Act 1975 which contains a six-month limitation period for such claims from the date on which representation to the deceased's estate was first taken out. Counsel settled the requisite proceedings which were issued before the limitation period expired, but unhappily her solicitors used Form N208 in the 1998 County Court Practice (which related to an arcane form of petition, originating in Chancery practice) instead of CPR Form N208 which counsel had correctly advised them to use. The consequence of this mistake was that although the substance of the claim was clear, and the supporting witness statement contained everything required of it by the new rules, the executor's solicitors had little difficulty in identifying nine different errors of form (see paragraph 9 of my judgment) which were attributable either to the claimant's solicitors use of the wrong form or to their unfamiliarity with other requirements of the new Civil Procedure Rules which had just come into effect.

29. In that case both the district judge and the circuit judge (on appeal) had given precedence to form over substance and had struck out the claim because of substantial non-compliance with the rules. This court came to a different conclusion. In my judgment, with which Peter Gibson and Robert Walker LJJ agreed, I said at paragraph 36:

"Of course the proceedings should have been started on CPR form N208, as opposed to CCR Form N208, and [the claimant's solicitor] ought not to have made all the other mistakes which were attributable to his culpable lack of familiarity with the new rules. Moreover the judge was quite correct when he said that the Civil Procedure Rules were drawn to ensure that civil litigation was brought up to a higher degree of efficiency. But one must not lose sight of the fact that the overriding objective of the new procedural code is to enable the court to deal with cases justly, and this means the achievement of justice as between the litigants whose dispute it is the court's duty to resolve. In taking into account the interests of the administration of justice, the factor which appears to me to be of paramount importance in this case is that the defendants and their solicitors knew exactly what was being claimed and why it was being claimed when the quirky petition was served on them."

30. It appears to me that the same principles are applicable in the present case. Although we did not call upon him to reply to the appellant's submissions on the appeal, Mr John Hobson QC has helpfully drawn our attention, since the hearing ended, to a decision of Mr Robin Purchas QC, sitting as a deputy high court judge, in Cala Homes (South) Ltd v Chichester District Council 79 P&CR 430. In my judgment Mr Purchas adopted the correct principles in that case.

31. The applicant's solicitors had filed a challenge to the respondents' local plan within the six weeks permitted by Section 287 of the 1990 Act, but they mistakenly filed a Part 7 claim form and particulars of claim in the Central Office of the High Court (which duly issued the claim on the same day) instead of filing a Part 8 claim form in the Crown Office, as required by the relevant Practice Direction to CPR Part 8 and RSC Order 94 Rule 2(1). In granting relief, the deputy judge said at pp 441-2:

"On the facts of the present case I do not accept [counsel's] first submission that as a matter of principle I should reject the application because it was notionally started as a private law action. There is no requirement for permission to make an application under section 287. For the reasons set out above it was, in my judgment, transparently intended and was in fact understood as an application under that section. I believe that the proper approach in giving effect to the overriding objective is to consider on the particular facts of the case how the range of relevant considerations should be balanced in coming to an overall view on how best to achieve a just dealing with the case.

...

Overall I conclude on the facts of this case that the risk of prejudice or detriment is not such that I should refuse to correct the manifest error in filing the claim at the Central Office. I believe that the overriding objective can be properly and best achieved by ordering that the claim be transferred to the Crown Office. I therefore propose to allow the applicants' application and to dismiss the application for striking out."

32. Mr Hockman QC pressed us to reverse the deputy judge's ruling on the basis that even if he had jurisdiction to grant permission to amend he should not have exercised it since the claimants' challenge to the grant of planning permission on Appeal 2 was obviously doomed to fail and it would be wrong to breathe any fresh life into it.

33. I have therefore considered the issues which the claimants wish to raise on their challenge to the Inspector's decision on Appeal 2. Although the conflicting evidence may make it difficult for the court to make a ruling in their favour on Ground 5 in their Details of Claim, I consider that the other grounds are properly arguable and that the claimants' challenge is not doomed to fail.

34. It has been possible to decide this appeal without any reference to pre-CPR authority. Since the new procedural rules are different, this is the desirable course to take wherever possible. Counsel drew our attention, however, to a judgment of Glidewell J in Gill v Secretary of State for the Environment [1985] JPL 710. The appellants in that case had challenged a decision on an enforcement notice appeal under the statutory predecessor of Section 289 of the 1990 Act (Section 246 of the Town and Country Planning Act 1971) and it was argued that it was now too late to amend the proceedings in order to mount the challenge to a condition imposed on the grant of planning permission under the statutory predecessor of Section 288.

35. Glidewell J decided that amendment was unnecessary because it was permissible to mount such a challenge under either section. This appears to be correct, because what is now Section 289 empowers a challenge to "a decision in proceedings on an appeal under Part VII against an enforcement notice", even if a more orthodox route of challenge to a decision granting planning permission on such an appeal pursuant to Section 177(1)(a) is contained in Section 288, and the court's permission is not required under that section.

36. Finally, the appeal highlights a certain sloppiness in practice in relation to the amendment permitted by the deputy judge. Paragraph 2.1 to the Practice Direction to CPR Part 17 sets out the required practice. It should be noted that paragraph 2.2 provides that the statement of case in its amended form need not show the original text (unless the court thinks it desirable, in which case either the familiar coloured amendments or a numerical code are permissible), but on the present occasion the order which was drawn up was couched in the very general terms recited in paragraph 19 of this judgment. If the "Details of Claim" mentioned in paragraphs 20 and 21 of this judgment represent the amended statement of case, they do not contain the rubric mentioned in paragraph 2.1 of the Practice Direction, and if the deputy judge made the direction attributed to him at the beginning of those "Details of Claim" it is not recorded in the amended minutes of his order.

37. For the reasons given in this judgment, I would dismiss this appeal.

LORD JUSTICE ROBERT WALKER:

38. I agree.

SIR RONALD WATERHOUSE:

39. I also agree.