Bovale Ltd v Secretary of State for the Communities & Local Government & Anor

In claims under sections 287 or 288 of the Town and Country Planning Act 1990, Part 8 does not require a formal defence, but the court may require a defendant to provide a short statement of the grounds on which the claim is resisted. That power arises from the general case-management jurisdiction and the overriding objective.

Rigid application of the ordinary timetable for evidence may be inappropriate in public law planning claims. The court should allow sufficient time for public bodies to obtain instructions and identify whether the claim should be conceded. A general period of ten weeks was regarded as reasonable for evidence and grounds of resistance, subject to adjustment in individual cases.

The claimant challenged, under section 288 of the Town and Country Planning Act 1990, a decision upholding the refusal of planning permission. A Deputy Master ordered the defendants to file evidence and alternative or additional grounds of resistance by a specified date.

The Secretary of State argued that Part 8 required only an acknowledgement of service and that the court had no power to require grounds equivalent to a defence. The claimant sought to maintain the directions. The central issues were whether the order was within the court’s case-management powers and what timetable was appropriate.

1. Appeal allowed. The application was treated as an appeal against the Deputy Master’s order. The order was set aside because the evidence direction was unnecessary on the facts, while the broader issue concerning grounds of resistance required clarification.
2. Part 8 does not require a defendant to file a formal defence. Rule 8.9 concerns a defence of the kind governed by Part 15. It does not prevent the court from requiring a concise indication of the grounds on which a claim is resisted.
3. Under Rule 3.1(2)(m), read with the overriding objective, the court may make directions needed to manage the case and ensure that the material issues are identified at an early stage. In planning claims, a short statement of grounds assists the parties, the court’s preparation and the efficient assessment of hearing length and costs.
4. The ordinary evidence timetable under Part 8 and Practice Direction 22 was considered unsuitable for many section 287 and 288 claims. Public authorities often receive little or no advance warning and need time to obtain instructions from inspectors, officers or planning committees. In public law, it may be inappropriate to exclude relevant evidence merely because it was served outside the ordinary timetable, since that may lead to an incorrect decision affecting the public.
5. Following the approach identified in Dinedor Hill Action Association v Herefordshire District Council [2008] EWHC 1741 (Admin), the court indicated that ten weeks would ordinarily be allowed for evidence. Grounds of resistance should ordinarily be served within the same period. This was an expectation for case management rather than an inflexible rule; a specific order could be sought where prejudice or proper case management required it.
6. Because the Secretary of State had not made the position on evidence sufficiently clear and the claimant achieved the practical object of its application, the Secretary of State was ordered to pay the claimant’s costs of the application and appeal. Any further appeal on the procedural issue was not to delay the substantive planning claim.

1. High Court (Administrative Court): the court treated the application as an appeal, allowed it and set aside the Deputy Master’s order.