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South Gloucestershire Council v. Secretary of State for Communities and Local Government [2008] J.P.L. 1757

DATE: 11 Apr 2008

Guidance from Collins J on the High Court's jurisdiction to strike out a claim under s.288 of the Town and Country Planning Act 1990 challenging the grant or refusal of planning permission by the Secretary of State.

 

In South Gloucestershire Council v. Secretary of State for Communities and Local Government [2008] EWHC 1047 (Admin), Collins J considered the High Court's jurisdiction to strike out a claim under s.288 of the Town and Country Planning Act 1990 challenging the grant or refusal of planning permission by the Secretary of State. Commenting on this rarely-used procedure, he held:

 

"2. Claims under Section 288 are not subject to any permission stage, unlike claims relating to enforcement notices. The reason why there is no permission stage is largely historical. Section 288 has existed under previous legislation for a very long time. Originally there was no need for any leave to appeal in any application against a decision of the Secretary of State or one of his or her inspectors whether it be on enforcement notices or decisions relating to appeals against refusals of planning permission.

 

3. As a result of recommendations by Robert Carnwath QC (as he was) in a report which he had prepared in 1989 or thereabouts the decision was made that there should be a permission requirement in respect of enforcement notice appeals largely because those who were subjected to such notices were using the appeal system in order to prolong the period in which they could carry on the activities that they knew perfectly well in due course they were going to have to cease. That requirement was not brought in in respect of Section 288 appeals.

 

4. The judges of this court have for some time taken the view that it is desirable that such a permission stage should be introduced. This is partly for the protection of those who make these claims. Quite often such are litigants in person or frustrated objectors to planning applications and they sometimes bring claims which manifestly have no chance of success. If there were a permission stage they could do so at relatively small cost whereas if they go ahead the costs mount up and they find themselves liable to pay a considerable sum of money. That is merely by way of introduction and an expression, yet again, of the hope that Parliament will look into this quickly and provide for such a requirement.

 

5. In reality, what is being done here is an attempt to show that this claim is one which cannot succeed and therefore the application to strike out is, in one sense, being used as an alternative to the permission requirement.

 

6. Consideration has to be given to the approach of the court. Essentially we are here concerned only with whether there are errors of law. There is no question of any factual dispute. So the right approach is for the court to adopt essentially the same approach as it would were it considering whether a claim was arguable. There is suggestion in some of the authorities that the threshold should be a little higher than mere arguability. It has been put on the basis of “is there a real chance that the claim will succeed?” Or rather, to put it in its correct way, has the applicant for the strike out shown that the claim has no realistic prospect of success? That is, as it seems to me, the approach that I should adopt. Has Mr Lockhart Mummery persuaded me that there is no realistic prospect that the claim made by the council will succeed?"

Christopher Lockhart-Mummery QC and Charles Banner appeared for the applicants, Crest Nicholson (South West) Ltd and Harcourt Developments.”