Secretary of State for Communities and Local Government v San Vicente and Carden  EWCA Civ 817, Court of Appeal, 18 June 2013 – read judgment
There is a curious if not bizarre set of anomalies about planning and environmental challenges. Where they involve an attack on a decision by the Secretary of State (typically in respect of a decision by a planning inspector after inquiry), the route is via section 288 of the Town & Country Planning Act 1990. There is a strict 6 week time limit, with no discretion to extend – but no need for permission to apply as in judicial review. But where there is a challenge to any other decision, the time limit (at the moment) is 3 months, with discretion to extend – but also a discretion to disallow if the application was not “prompt” even within the 3 months (see my post on this last point) and the permission hurdle to clear.
Yet in each case the substantive grounds are effectively the same – but to what extent should procedures differ other than those required by the statutory underpinning?
The conundrum in this case was – what to do about a set of grounds (drafted by lawyers) filed after the s.288 time limit, in substitution for grounds (by the clients doing it themselves) filed within the 6 weeks.
The Court of Appeal (approving the judge’s decision) held that there was no restriction on its discretion to allow such an amendment and no requirement that the new grounds bear any resemblance to those originally pleaded, after the end of the 6 weeks.
The Secretary of State (SoS) and the developer argued that the Court could not allow the substitution because the new grounds did not arise out of the same or substantially the same facts as those originally pleaded, in reliance on rule 17.4 of the Civil Procedure Rules.
The Court said that the correct approach is that it has a broad discretion to allow a substitution after the end of the 6 weeks under rule 17.1(2)(b) of CPR. There should not be different standards between section 288 challenges and planning judicial reviews and, if anything, the existence of a strict limitation period (i.e. one without a discretion unlike in j.r.) weighed in favour of allowing amendments in proper cases. It rejected the case that the time period was a limitation period falling within CPR 17.4.
It was severely troubled by the consequences of the SoS’s argument. So Beatson LJ at 
To allow an amendment to an in-time public law challenge only if the application to amend is made outside the requisite statutory period, here six weeks, where the amended grounds rely on the same or substantially the same facts as the original grounds would be inflexible. It could inhibit the ability of the court to vindicate the principle of legality or to consider the real issues of public interest and policy or the most serious ground for impugning the decision in the way that Lord Steyn stated a public law court should in Burkett…. Take the example of an in-time section 288 challenge to an Inspector’s decision on a number of technical planning grounds. After the expiry of the six week period, while the case is awaiting hearing in the Administrative Court, information may come to light which suggests that the Inspector took a bribe from the developer or was motivated by an improper purpose which is unconnected to the factual basis of the original grounds. There would, if Mr Kimblin’s submissions are correct, be no way that these questions could be determined by the Court.
The substantive hearing
This took place on 1 July 2013, and the Claimants won – judgment extempore, and case summary behind a Lawtel paywall. The developer’s appeal before the inspector had been conducted as an informal hearing – despite the fact that it concerned up to 100 houses – see the bottom right of my pic for the locality and various moves afoot. No local objectors were present. The inspector requested a copy of the public notification of the hearing and a letter was produced – unhelpfully it did not include information of the time or date of the hearing. On day 2, the inspector discovered the error. He adjourned the hearing and organised a further hearing, also conducted by him. The resident objectors attended. Not all the information heard at the first hearing was ventilated at the second hearing, including an important map showing alternative areas of development. The objectors also stated that the second hearing was rushed as it had run for half the time of the first hearing. The inspector recommended the grant of planning permission, and this was a challenge to that grant.
2 objectors submitted that the second hearing was not a fresh hearing and therefore the decision reached was prejudicial. The SoS contended that the decision would not have been different if the objectors had attended the first hearing.
Collins J said that there was no doubt that there was the appearance of unfairness and some material which showed that the decision was unfair. Although it was not a court hearing, justice had to be seen to be done. The objectors were statutorily entitled to attend the hearing. Even at an informal hearing it was incumbent on the inspector to ensure fairness for all who were entitled to attend the hearing. However, it was not enough to show that there had been unfairness; it had to be shown there was a prejudicial decision. On traditional grounds, both on judicial review and under section 288, there had to be a reasonable possibility that if the matter was heard again there could have been a different result. If it was clear that the decision would have been the same even if the correct procedure had been followed it would be inappropriate to quash the order. If a fresh hearing was held it was apparent that a different decision could be reached. The inspector had placed weight on evidence from the first hearing which was not dealt with at the second hearing.
So the decision was quashed, and the hearing will have to proceed once more.
The outcome amply justifies the impact on certainty which any amendment outside the 6 week period might bring. A strict interpretation of the amendment rule would have meant that an unfair procedure would have escaped challenge. All the more unfair this would have been given that the objectors were litigants in person when they started the court proceedings. And I dare say we are going to be seeing a lot more of these problems as more and more litigants in person struggle with the complexity of court proceedings – an unseen cost of legal aid cutbacks. The executive cannot have it all ways – something usually gives.
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