England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DORCHESTER COUNTY COURT
(His Honour Judge Pryor)

		Royal Courts of Justice Strand London WC2 Wednesday, 20th June 2001

1. LORD JUSTICE KAY: This is an application for permission to appeal and for an extension of time to appeal from a decision of His Honour Judge Pryor QC sitting in the Dorchester County Court on 9th November 2000. That was in itself an appeal from the order of District Judge Weintroub sitting in the Bournemouth County Court on 8th December 1999, which struck out the applicant's statement of claim. This is therefore a second appeal to which CPR 52.13 applies. That means that this court will not give permission unless it considers that (a) the appeal would raise an important point of principle or practice, or (b) there is some other compelling reason for the Court of Appeal to hear it.
2. The appellant's notice was lodged on 4th December 2000, 25 days after His Honour Judge Pryor's decision. I deal first with the extension of time. Bearing in mind that this was not an easy matter and bearing in mind as well that the applicant was not legally represented, I would extend the period of time for him to file his notice. Therefore, I consider this on its merits, but having regard to the relevant rule for second appeals to which I have referred.
3. In 1986 the appellant bought a property known as The Coppins in Christchurch intending to re-build the house on that land as an investment. While the sale of the property was proceeding and without the applicant's knowledge, the local authority, Christchurch Borough Council, ("CBC") granted outline planning permission for the neighbouring property to be developed into a ski and leisure centre. In due course detailed planning permission was granted, with a condition that where the entrance to the centre met the highway, the developers would ensure that there was a visibility splay with a site line three metres wide by 125 metres long. In the course of a dispute over several years the applicant argued that the site line condition could not be met unless land at the front of his property was used. Since his agreement had not been secured he argued that the planning permission was unlawful. CBC took the view that the site lines were only obstructed because the applicant's property, in particular a post and fence, encroached onto the highway. Having initially been prepared to take enforcement action against the developers they withdrew that enforcement action. Instead they insisted that the applicant remove the encroachment onto the highway. The applicant formed the view at that stage that CBC, and in particular one of its officers, was fraudulently colluding with the developers to prevent him selling what was effectively a ransom strip of land needed to form the splay to the developers.
4. In 1996 the applicant's property was repossessed and the bank mortgagee arranged for the alleged encroachment to be removed. I shall give the detail in a moment. In June 1998 the applicant issued a claim in the High Court against CBC claiming £850,000. It was struck out in December 1998 as disclosing no cause of action, being out of time and being so poorly drafted as to prejudice the defendant. On appeal the applicant was given the opportunity to reformulate his statement of claim so as to disclose a cause of action which was not statute barred. The new statement of claim, when drawn, was the subject of a further strike out application. That was the matter heard by District Judge Weintroub who ordered that it should be struck out. On appeal to His Honour Judge Pryor that decision was upheld.
5. The more detailed background is important. On 24th September 1986 the applicant exchanged contracts to purchase The Coppins. On 3rd October 1996 the owners of the property next door to The Coppins applied for outline planning permission in order to develop the site into a dry ski slope. The county surveyor was consulted. He made a recommendation for a splay of the dimensions to which I have referred. On 3rd November 1986 Mr. Wilson wrote a letter, Mr. Wilson being the vendor of The Coppins, saying that he had no objection to the site line requirements across his property, subject to his retaining his wall and hedge.
6. On 12th November 1986 the application for planning permission came before CBC. It is unclear whether outline planning permission was granted at that meeting or at a later meeting in May 1987 but at one or other meeting it clearly was. On 28th November 1986 the applicant completed the purchase of The Coppins. He was unaware of the planning proposals next door. On 10th June 1988 consent to planning permission was issued subject to reserved matters. On 13th October 1998 the county surveyor reported that the visibility conditions could not be satisfied under the application as submitted and the lack of visibility would be likely to cause danger to road users. He recommended refusal. Notwithstanding that, on 12th December 1988 the reserved matters were approved.
7. In March 1990 the applicant complained to the local government ombudsman about the handling of the planning permission for the development. On 16th October 1990 a letter from the applicant's solicitors to the Chief Executive of CBC suggested that there were matters requiring investigation which may take a fairly serious turn. On 14th November 1990 CBC wrote to the applicant, accepting that the developers were in breach of planning controls and indicating that enforcement action would be taken. On 14th January 1991 CBC issued an enforcement notice against the developers in respect of the site line requirements. On 15th February 1991 the developers appealed against the enforcement notice on the basis, amongst others things, that they needed 12 months to acquire the adjoining land to comply with the requirement. On 10th April 1991 the developers' application to vary the planning condition so as to reduce the splay, so that it would no longer be in breach of the requirement, was rejected. On 5th July 1991 CBC wrote to the applicant, suggesting that his fence encroached onto the highway and that it should be moved back. Shortly after that, in July or August, CBC abandoned enforcement proceedings against the developers on the basis that they were satisfied that the site line was only obstructed by the applicant's fence encroaching onto the highway. In May 1993 the applicant complained to the local government ombudsman concerning the handling of the planning application and the subsequent dispute concerning his property's boundary. The ombudsman made a full inspection of CCB's files. There was a series of correspondence which passed between the applicant and CBC. On 13th December 1993 the local government ombudsman replied to the applicant's solicitors. He concluded that any complaint depended on whether the disputed land did belong to the applicant or to CBC. If the land belonged to the applicant, then there should have been an agreement requiring the applicant to make his land available to the developers. Since the ownership of the relevant land was still in dispute, the ombudsman suggested that the applicant file another complaint once the dispute had been resolved.
8. On 15th August 1996 the applicant's property was repossessed by Barclays Bank under the terms of a mortgage. On 24th September 1996 CBC wrote to Hurn Parish Council indicating that they would soon be serving an order requiring the applicant to remove his encroachment onto the highway obstructing the site line. On 5th November such a notice was served and it was served on Barclays Bank, requiring removal of the structure from the highway. The property was sold to another owner by the bank. It was a term of the sale that the new owner complied with the notice.
9. On 8th June 1998 the applicant issued the claim in the High Court with which this case is concerned. He claimed £600,000 plus interest for the loss of opportunity to sell the ransom land, £175,000 loss to the value of The Coppins and £75,000 as loss of amenity.
10. As I have indicated, that statement of claim was the subject of an application to strike out. That application was heard by District Judge Lamb on 18th December 1998. He ordered that it should be struck out. The matter went on appeal to His Honour Judge Thompson QC. Judge Thompson took the view that there were matters which deserved at least some consideration but that the statement of claim in its then form was one that could not succeed and, if it remained in that form, it would have to be struck out. That was for two reasons; firstly, because it showed no cause of action arising and, secondly, because, even if there was a cause of action, there was nothing giving rise to that cause of action that had occurred during the period of limitation prior to the service of the proceedings. Judge Thompson therefore advised the applicant to seek legal advice and to get the document properly drawn. If he did and if a valid claim was advanced, then maybe the matter could proceed. The applicant tried to obtain legal advice. He was not in a financial position to pay for it himself. He sought legal aid but, as he puts it, because it was treated as just a boundary dispute, the Legal Aid Board were not prepared to finance his claim. He therefore could not afford legal advice and did what he had to do himself, which was to endeavour to re-draw the statement of claim in a way that would enable it to proceed. The new document was put before District Judge Weintroub on a fresh application to strike out. She came to the conclusion that it was an abuse of the court's process or otherwise likely to obstruct the just disposal of proceedings and accordingly struck it out. That matter was appealed to His Honour Judge Pryor and he dismissed the claim.
11. The proposed grounds of appeal can be summarised in this way. Firstly, the developers did not comply with the requirement to provide a splay at the point where the development meets the public road. It could not comply because to do so would infringe upon the applicant's land. In those circumstances, planning permission should not have been given and, once it had been given, since there was non-compliance with that enforcement notice, proceedings should have been taken. It is accepted that those events all occurred outside the limitation period.
12. The next matter of significance and about which complaint is made is the Council's attitude when it withdrew those enforcement proceedings, again outside the limitation period in November 1991. It is put that that was a smoke-screen being used by CBC, and particularly its officer, Mr. Montgomery, as an excuse not to take enforcement action. It is suggested that it was done in collusion with the developers so as to prevent the applicant selling his land at a ransom price.
13. Then it is submitted that CBC harassed the applicant between 1991 and 1996, threatening to issue proceedings to compel him to move his property boundary back from where it allegedly encroached on the highway when there was no such encroachment. It was properly on his own land. The applicant argued before His Honour Judge Pryor QC that the planning permission was obtained unlawfully and that it was another example of CBC and its officers behaving improperly or fraudulently arranging for planning permission to be granted so that the applicant would be faced with a fait accompli when he purchased his land.
14. His Honour Judge Pryor considered the matter undoubtedly carefully. There can be no question about that. He said at page 12 of the transcript:

"Judge Thompson had in effect been through most of the matters I have been through and having done so he indicated, when dealing with the question of limitation, that Mr Tabram must or should have been aware of any cause of action he had by the end of 1991 at the very latest. Having been through the matters I have been through, it appears to me that the same applies. I have searched as carefully as I can through the papers and I have pressed Mr Tabram to help me with anything he wishes to assert but I have not been able to identify anything happening later than the end of 1991, certainly not after 1st June 1992, which could give rise to a cause of action and of which Mr Tabram was unaware. He does not assert in terms (but I would not expect him necessarily to be able to do so readily as a layman) matters which would amount to fraudulent concealment, or whatever the present provision is, to defer the running of the limitation period. So I am quite satisfied that there is no cause of action shown on the claim as now pleaded, which arises after June 1992, that is to say within six years of the starting of the claim."

15. The complaint made about that conclusion is that in fact the requirement made by CBC to remove the fence from what was alleged to be the highway onto what they contended was his own land was something that occurred after that time and therefore takes this matter back into a period so that it is not outside the limitation period. With respect to Mr. Tabram, my conclusions are as follows. Firstly, this is a second appeal. I am entirely satisfied that it raises no important point of principle or practice, and when I consider whether there is any other compelling reason for the Court of Appeal to hear the matter, I have to conclude that there is not. The whole system of appeal is to give everybody a right of appeal, not to give everybody a right of two appeals. The appeal has been heard. It is only in very limited circumstances that a further appeal will be allowed. Those circumstances do not apply to this case. In any event, even if it was to go forward and I was to give permission, I am satisfied that, on the merits, His Honour Judge Pryor did reach a conclusion that he was entitled to reach. He had carefully gone through this case. Judge Thompson had given an opportunity for the matter to be re-pleaded, had warned of the need as to what was required from that further pleading, and still there was no prospect of success. That was the conclusion of Judge Pryor. Mine would have been the same. It follows that, even if I thought it right contrary to the present rules to allow an appeal to go forward, I am sure it would fail. For those reasons I refuse permission.
Order: Application refused.