Hertsmere Borough Council v Harty & Ors

Under Rule 52.9(2) of the Civil Procedure Rules, a grant of permission to appeal should be set aside only for a compelling reason. Inaccurate or incomplete material may meet that standard only if it affected the permission decision and permission would otherwise not have been granted.

A local authority’s positive duty to obtain relevant welfare information does not ordinarily require it to duplicate adequate information already assembled and supplied by those acting for the affected persons. It cannot, however, rely on inadequate submissions to avoid its duty. The Article 8 issue of whether the matter had been approached merely as a planning issue remained arguable and was left for the appeal.

The Council began Part 8 proceedings seeking an injunction under section 187B of the Town & Country Planning Act 1990 to prevent the defendants’ use of land for caravans. On 13 March 2001, Judge Brunning, sitting as a Deputy Judge of the High Court, granted an interim injunction requiring the removal of caravans and preventing further use without planning permission.

Permission to appeal was granted on the papers from an inadequate note of the judge’s reasons. The Council applied under Rule 52.9(2) of the Civil Procedure Rules to set aside that permission, contending that the material was incomplete and inaccurate. The central question was whether those defects supplied a compelling reason to remove or restrict permission, and whether the defendants’ welfare-information grounds remained arguable.

Disposition

1. The application was allowed. The court did not set aside permission to appeal altogether. It restricted permission by removing the grounds based on an alleged duty to make independent welfare inquiries, while preserving the Article 8 grounds concerning the adequacy of the balancing exercise.
2. Per Sedley LJ, Rule 52.9(2) of the Civil Procedure Rules requires a compelling reason to set aside permission. Where the asserted reason is that the permission judge was misled by the appellant’s material, the respondent must show that: the material was inaccurate or incomplete; the deficiency bore on the grounds for which permission was granted; and, but for it, permission would not have been granted.
3. The solicitor’s note of the first-instance judgment was seriously inadequate. A proper manuscript note is particularly important in an urgent appeal before an official transcript is available. Counsel and solicitors must take and, where appropriate, reconcile sufficiently full notes before presenting them to the permission judge. Sir Murray Stuart-Smith agreed and stressed that the judgment note is the most important document in such an application.
4. The fuller transcript showed that the defendants’ solicitors had been able to assemble and present the relevant welfare material to the planning committee. Although a local authority may have a positive duty to obtain relevant information, that duty does not require it to repeat adequate work already done by the persons’ legal advisers. If the submissions are inadequate or fail to address necessary matters, the authority cannot shelter behind them. On the fuller material, the welfare-inquiries grounds were unarguable.
5. The court nevertheless held that it remained arguable whether the Article 8 obligations of the authority and the court were sufficiently discharged by treating them as planning issues, and whether the judge had deferred excessively to the authority. Those substantive questions were not decided.

Procedural history

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 1238, the court allowed the Council’s Rule 52.9(2) application and restricted, rather than wholly set aside, the existing permission to appeal.
2. Queen’s Bench Division: Judge Brunning, sitting as a Deputy Judge of the High Court, granted the Council an interim injunction on 13 March 2001 in proceedings under section 187B of the Town & Country Planning Act 1990.