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The Court of Appeal Gives Important Ruling on High Court Planning Procedure

DATE: 11 Mar 2009

The Court of Appeal have today overturned the decision Collins J. in Bovale Ltd v SSCLG and Herefordshire DC [2008] EWHC 2143 (Admin).

In Bovale Collins J., as Lead Judge of the Administrative Court, indicated that defendants in claims under s. 287 and 288 of the Town and Country Planning Act 1990 (and also s. 113 of the Planning & Compulsory Purchase Act 2004) ought to think in terms of serving both evidence and grounds for resistance, however short, within a period of 10 weeks from service of the claim. Furthermore he indicated that where the defendant chose not to put in any grounds for resisting and thus the grounds set out in the claim form represented the way in which the case was to be put by the claimant, it was for the defendant to put in the first skeleton argument.

The Court of Appeal held that Collins J. erred in so doing. Accordingly, there is no general requirement for grounds of resistance in such claims and evidence continues to be governed by the relevant parts of the CPR Part 8 Practice Direction. The Court of Appeal held that:

parties are entitled to start from the position that the relevant rules and practice directions will apply to their case; the onus will be on the party seeking a different form of process and indeed on the judge who may of his own motion wish to exercise his case management powers in a particular case to demonstrate that the case is outside the norm. What Collins J was not entitled to do was to put the onus entirely the other way round and impose an onus on a defendant to persuade the court that some procedure inconsistent with the rules and practice directions should not be followed. The right way to alter the rules is through the Rule Committee and the right way to alter a practice direction is under the Section 5 procedure.

The case is also one of some constitutional importance considering the relationship between the Courts and the executive as regards the making of practice directions which are governed by s. 5 of the Civil Procedure Act 1997 as amended.

James Maurici appeared for the Secretary of State.