Thurrock Borough Council v Secretary Of State For Environment, Transport And Regions & Anor

Under the Civil Procedure Rules, the court may permit a public-law claim to be amended where the substance of the challenge was commenced in time but the claimant used the wrong procedural route or form. The central question is whether the amendment enables the real dispute to be determined justly, having regard to the overriding objective and any prejudice to the parties. A formal procedural mistake should not defeat a clearly understood claim where the amendment adds no materially new claim and the challenge is properly arguable. A challenge to a planning decision granting permission under section 177(1)(a) may be brought under section 288, although section 289 may also encompass a decision made in enforcement-notice appeal proceedings.

Thurrock Borough Council challenged an inspector’s decisions on two enforcement-notice appeals. One appeal concerned alleged changes of use and proceeded under section 289 of the Town and Country Planning Act 1990. The other concerned an inspector’s grant of planning permission under section 177(1)(a), which was properly challengeable under section 288.

The council lodged a single application under section 289 within the applicable 28-day period, but sought at the hearing to amend the claim so that the challenge to the grant of planning permission proceeded under section 288. A deputy High Court judge allowed the amendment. The issue was whether that procedural error could be corrected under the Civil Procedure Rules.

1. The appeal was dismissed. The council’s challenge to the inspector’s grant of planning permission had been initiated within the six-week period applicable to section 288. Its substance, grounds and supporting evidence made clear that it challenged the planning merits of the permission granted under section 177(1)(a).
2. The relevant document was a statement of case for the purposes of CPR Part 17, comprising the draft claim form and the further information supplied with it. Because it had been served, amendment required permission under CPR 17.1(2). The proposed amendment did not add or substitute a new claim within CPR 17.4: the relief sought and the substantive grounds had been apparent from the outset.
3. The court’s discretion under CPR Part 17 had to be exercised consistently with the overriding objective in CPR 1.1 and the court’s duty under CPR 1.2. The Civil Procedure Rules favour dealing with the real dispute justly. A mistake in selecting the procedural route should not defeat a claim which was commenced in time, was understood by the opposing party, and caused no material prejudice.
4. The challenge was not doomed to fail. Although conflicting inquiry evidence might make one ground difficult to establish, the other grounds were properly arguable. That provided an additional reason not to prevent the claim from proceeding.
5. The court approved the procedural approach in Hannigan v Hannigan and Cala Homes (South) Ltd v Chichester District Council. It also considered the reasoning in Gill v Secretary of State for the Environment correct: a challenge to a decision in enforcement-notice appeal proceedings could be brought under section 289 even where section 288 provided the more orthodox route for challenging a grant of planning permission under section 177(1)(a).
6. The court noted deficiencies in the form and recording of the amendment order, but these did not justify allowing the appeal.

• Court of Appeal (Civil Division) [2000] EWCA Civ 323: dismissed the appeal from the deputy High Court judge’s order permitting amendment.