QUEEN'S BENCH DIVISION
Leeds LS1 3BG
B e f o r e :
| HARROGATE BOROUGH COUNCIL
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
|- and -
James Burton (instructed by Stokes Partners LLP) for the Interested Party
The Secretary of State did not appear and was not represented.
Hearing date: 16th April 2014
Crown Copyright ©
Judge Behrens :
"… [The Secretary of State] concedes that the said decision should be quashed on the ground that the … Inspector erred in law by misinterpreting condition 11 as requiring a scheme for only one affordable housing unit, when the description of the development in the original outline planning permission showed that three units were required"
2. The facts.
2.1 Planning History
1. On 25th May 2011 the Council granted outline planning permission for 5 detached open market dwellings and 3 affordable dwelling units with occupancy restricted to people over 55 years with all matters reserved. Condition 11 was in the following terms
The development hereby permitted shall not begin until a scheme for the provision of affordable housing as part of the development has been submitted and approved in writing by the local planning authority. The affordable housing shall be provided in accordance with the approved scheme. The scheme shall include:
i) The timing of the construction of the affordable housing
ii) The arrangements to ensure that such provision is affordable for both initial and subsequent purchasers of the affordable housing and
iii) The occupancy criteria to be used for determining the identity of the prospective and successive occupiers of the affordable housing and the means by which such occupancy shall be enforced.
2. On 17th September 2012 the Council approved a variation to Condition 11. The effect of the variation was to defer the need to apply for the approval for the affordable housing until the development of the last two open market plots. It thus permitted the development of 3 plots without the need for the approval of the affordable housing.
3. On 6th May 2013 Mr Zammitt made a second application to vary Condition 11 by allowing the provision of the affordable housing to be provided off site. The Council did not determine the application with the result that on 9th August 2013 Mr Zammitt's agent submitted an appeal to the Secretary of State under section 78 of the 1990 Act.
4. Following a site visit on 11th November 2013 the Inspector held an informal hearing on 12th November 2013. As already noted his decision letter is dated 5th December 2013.
2.2 The Inspector's decision
9. The Council asks that my decision includes a specific requirement in condition 11 for three affordable dwellings to be provided. There is no doubt that this was the expectation of both the original outline permission in 2011 and that in 2012. Indeed this has been the appellant's intention.
10. There are many factors which point in favour of the Council's request. From the evidence it is clear to me that there is a pressing need for affordable housing in Harrogate. The appellant has not contested that three affordable dwelling is the level which would ordinarily be sought from a scheme for eight homes on this site through Selective Alteration to the Harrogate Local Plan May 2004 … I have no reason to suppose otherwise. The importance of the need for a condition to secure three affordable units carries significant weight.
2.3 The chronology following the decision
Exchange of Contracts for Plot 6 Fulwith Mill Lane
1. Instructions to redesign the house on plot 5 on the basis that a more expensive dwelling would be viable on a development that had no affordable housing units.
2. Instructions given to various contractors following an email received from his quantity surveyors on 16th January 2014
3. Instructions to a contractor to clear and prepare plot 6
3. Defects other than late service
3.1 Place of Service
Where there has been an error of procedure such as a failure to comply with a rule or practice direction—
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.
3.2 Interested Parties
3.3 Pre-action Protocol/Conduct
This protocol will not be appropriate where the defendant does not have the legal power to change the decision being challenged, for example decisions issued by tribunals such as the Asylum and Immigration Tribunal.
This protocol will not be appropriate in urgent cases, for example, when directions have been set, or are in force, for the claimant's removal from the UK, or where there is an urgent need
1.1 The aims of this Practice Direction are to—
(1) enable parties to settle the issue between them without the need to start proceedings (that is, a court claim); and
(2) support the efficient management by the court and the parties of proceedings that cannot be avoided.
1.2 These aims are to be achieved by encouraging the parties to—
(1) exchange information about the issue, and
(2) consider using a form of Alternative Dispute Resolution ("ADR").
2.1 This Practice Direction describes the conduct the court will normally expect of the prospective parties prior to the start of proceedings.
2.2 There are some types of application where the principles in this Practice Direction clearly cannot or should not apply. These include, but are not limited to, for example—
(1) applications for an order where the parties have agreed between them the terms of the court order to be sought ("consent orders");
(2) applications for an order where there is no other party for the applicant to engage with;
(3) most applications for directions by a trustee or other fiduciary;
(4) applications where telling the other potential party in advance would defeat the purpose of the application (for example, an application for an order to freeze assets).
Overview of Principles
6.1 The principles that should govern the conduct of the parties are that, unless the circumstances make it inappropriate, before starting proceedings the parties should—
(1) exchange sufficient information about the matter to allow them to understand each other's position and make informed decisions about settlement and how to proceed;
(2) make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR in order to do so.
6.2 The parties should act in a reasonable and proportionate manner in all dealings with one another. In particular, the costs incurred in complying should be proportionate to the complexity of the matter and any money at stake. The parties must not use this Practice Direction as a tactical device to secure an unfair advantage for one party or to generate unnecessary costs.
4. Extension of Time
The claim form must be filed at the Administrative Court and served within the time limited by the relevant enactment for making the application. Practice Direction 54D applies to applications under this paragraph.
Except where these Rules provide otherwise, the court may—
(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)
50. Corus involved a challenge under section 287 where the claim form was served two or three days outside the 6 week period. It is common ground that no distinction can be made between sections 287 and 288.
"21. In all these circumstances I come to apply my discretion to the present application bearing in mind the overriding principle that requires cases to be dealt with justly. I bear in mind the factors identified in CPR rule 1.1 and those identified by Lightman J, Blackburn J, and Scott-Baker J in applying that principle in the cases already cited. It seems to me that in a case where the council concedes that there is an arguable case that it has acted unlawfully in implementing a plan which in certain respects does not follow the decisions of an inspector after public inquiry with the result that a potentially out lawful plan may affect planning policy for three years the considerations are rather different from those affecting ordinary litigation of the type considered in many of the recent cases. Obviously dilatoriness cannot be seen to be encouraged and it will not be encouraged. The leeway available will be slender. However I do not consider that it will be at all just to refuse an extension of time for two or three days to challenge an action of a public authority that is potentially unlawful where the error was of the nature that occurred here.
19 I should add that I see nothing in this result which sits uneasily with the overriding objective of the CPR . Judges will exercise their discretion whether or not to extend time for service under CPR 3.12(a) in accordance with the overriding objective, which will require them of course to have regard to the statutory policy that these cases be subject to minimum delay, a policy demonstrated by the absolute six-week time limit for issue of proceedings. On the other hand, they will have regard also to the general public interest in having viable challenges to decisions of public authorities ventilated in proceedings.
21 The council have a second submission, that the judge's exercise of his discretion in favour of Corus cannot be supported. The judge reviewed a number of cases in which consideration had been given to the kind of matters which would be material to a discretionary decision whether or not to extend time; the length of the delay and the explanation for it; the existence or absence of prejudice; the paramount considerations of the interests of justice; and the applicant's prospects of success.
24 … Section 287(4) is not in truth an ouster clause. It is a section which conferred a jurisdiction in limited terms. The fact that the six-week period is "tight", to use that expression, cuts both ways. The other points are all matters which it seems to me that the judge was entitled to consider. We cannot overturn his exercise of discretion unless it was based on a legal mistake or was plainly wrong. In my judgment it was neither.
25 I should add that I would for my part accept, as I indicated in the course of argument, that the power in CPR 3.12(a) to extend time for service in a s.287 case should be used sparingly. The primary six-week timetable, absolute so far as issue of proceedings is concerned, demonstrates an important statutory policy that these matters be expeditiously dealt with. If the delay is at all substantial in such a case, the applicant will I think have a very large hill indeed to climb. The statutory policy is always to be considered, notwithstanding the importance, which I also accept, in the public interest that viable challenges to public decisions be ventilated in proceedings. Here the delay was two or three days. I can see nothing that would entitle us to overturn McCombe J.'s exercise of his discretion.
It is convenient therefore to consider at the outset the merits of the council's challenge to the inspector's decision because, save in cases of significant delay or where there is significant hardship or prejudice, it will almost always be sensible to consider an application for an extension of time in the context of at least a preliminary assessment of the merits of the substantive case which the would-be appellant seeks permission to advance.
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
"i) On an application for relief from a sanction under CPR 3.9, it is usually appropriate to start by considering the nature of the non-compliance. If the non-compliance can be regarded as trivial or insignificant, the court will usually grant relief provided that an application is made promptly .
ii) If the non-compliance cannot be so regarded, the court should consider why it occurred and will still be likely to grant relief if there is a good reason for it .
iii) Good reasons are likely to arise from circumstances outside the control of the party in default ; by contrast, inefficiency or incompetence of a party's solicitors – for example, where a deadline is simply overlooked – is unlikely to amount to a good reason .
iv) Where the non-compliance is not trivial and there is no good reason for it, the court is still required by CPR 3.9 to consider "all the circumstances of the case, so as to enable it to deal justly with the application"  + . However, relief should not usually be granted in such cases because the circumstances which should generally be given greatest weight are the two factors specifically mentioned in the rules  + ."
The new more robust approach that we have outlined above will mean that from now on relief from sanctions should be granted more sparingly than previously.
Given that, and given all the other factors, this was one of those cases in which, notwithstanding the paramount importance and the great weight to be given to the two matters specified in CPR 3.9, those two matters could reasonably be assessed as outweighed by all the other circumstances. There is, in my view, no proper basis for interfering with the judge's evaluation of the position and his exercise of discretion