Eco-Energy (GB) Ltd v First Secretary of State & Ors

A person is aggrieved for the purposes of section 288 of the Town and Country Planning Act 1990 if that person was the planning appellant, participated sufficiently actively in the planning process, or has a relevant interest in the land. The status acquired through participation in a planning application cannot be assigned after the application has been determined.

The strict statutory period promotes finality. Once it expires, the court lacks jurisdiction to question the planning decision. Rule 19.5 of the Civil Procedure Rules cannot be used to substitute an eligible claimant where the original claimant lacked standing. A mistake about a party’s capacity to sue is not a mistake about that party’s identity.

Eco-Energy Group applied for planning permission to develop land, principally by extracting coal. Following an inquiry, the inspector’s adverse decision was adopted by the Minister. Eco-Energy (GB) Ltd, which had neither made the planning application nor participated in the inquiry, challenged the decision under section 288 of the Town and Country Planning Act 1990.

Before the challenge, Mr Clarke had purported orally to transfer to the company his options over the land. The transfer was ineffective at law under section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. Collins J struck out the application because the company was not a person aggrieved. On appeal, the company asserted an equitable interest, an assignment of the planning application’s benefits, and alternatively sought to substitute Mr Clarke as claimant.

The central issues were whether the company had standing under section 288 and whether substitution could be permitted after the statutory period had expired.

1. Appeal dismissed. The company was not a person aggrieved within section 288 of the Town and Country Planning Act 1990. Under Times Investment Ltd v Secretary of State for the Environment, the expression covers the planning appellant, a person who participated sufficiently actively in the planning process, or a person possessing a relevant interest in the land. The company could qualify only through the third category, but the oral transfer of the land options was ineffective.
2. The proposed equitable-estoppel or constructive-trust case could not properly be raised for the first time on appeal. It was inconsistent with the concession below and depended on evidence about the transaction and the relationship between Mr Clarke and his wholly owned company. In any event, the argument was unsustainable. The doctrines discussed in Amalgamated Investment and Taylors Fashions presupposed conflict or negotiation between the parties and did not apply to the purported transaction between a sole shareholder and his company.
3. The status arising from Eco-Energy Group’s participation as the planning applicant could not be assigned. Its right to challenge the decision arose from its own factual involvement in the planning process and remained with it. A person could not become aggrieved merely through a purported assignment of interests in an already determined planning application.
4. Mr Clarke could not be substituted after expiry of the section 288 period. The statutory scheme places strong emphasis on speed, certainty and finality. Once that period expired, the court lacked jurisdiction to question the planning decision, consistently with Smith v East Elloe Rural District Council.
5. Rule 19.5 of the Civil Procedure Rules did not apply. Section 288 was not an enactment within rule 19.5(1)(c), even on a broad reading of that provision. The loss of jurisdiction independently precluded substitution. Furthermore, the company had not been named by mistake for Mr Clarke under rule 19.5(3)(a): any mistake concerned its capacity to sue, not its identity. Rule 19.5(3)(b) was also inapplicable because the contention was that the claim could not proceed at all without substitution. The court would in any event have refused substitution as a matter of discretion.

Jacob LJ and Peter Gibson LJ agreed with Buxton LJ. The appeal was dismissed with costs.

1. Court of Appeal (Civil Division): By [2004] EWCA Civ 1566, unanimously dismissed the company’s appeal.
2. High Court, Administrative Court: Collins J struck out the section 288 application because Eco-Energy (GB) Ltd was not a person aggrieved.