Coyle v Secretary of State for Communities & Local Government & Anor

In a section 288 planning challenge, a claim should be struck out only where it is plainly hopeless or bound to fail. The court must distinguish between the likely merits of the challenge and whether it is reasonably arguable.

Arguments not advanced before the planning inspector cannot ordinarily support a later challenge based on failure to consider them, particularly where they are sophisticated variants of arguments that were made. However, an inspector may commit a reviewable error by failing to address a material consideration, such as the exceptional disruption to the education of travelling children who have no settled alternative site.

The claimant challenged a planning inspector’s dismissal of an appeal against refusal of permission to site gypsy caravans on Green Belt land. The claimant alleged that the inspector had failed to consider the eventual need for another Green Belt site and had given inadequate weight to the educational disruption likely to follow eviction.

The second defendant applied under CPR 3.4(2)(a) to strike out the claim. The central issue was whether either ground disclosed reasonable grounds for bringing the claim, applying the high threshold applicable to a claim that was hopeless or doomed to fail.

1. Disposition. The application was allowed in relation to the first ground and refused in relation to the second. The first ground was struck out. The second ground remained for determination at the substantive hearing. Costs were in the claim.
2. The court accepted that a strike-out application could be made in section 288 proceedings. The relevant question was not whether the challenge was likely to succeed at a full hearing, but whether it was arguable and disclosed reasonable grounds. A claim should be excluded at this stage only if it was bound to fail or plainly hopeless.
3. The first ground concerned the alleged need to find another Green Belt site within the district if the claimants were evicted. That argument had not been advanced before the inspector, either expressly or by necessary inference. The inspector had dealt adequately with the familiar argument that the claimants would otherwise have nowhere to go. He could not reasonably be expected to address the more nuanced variant later advanced. The first ground therefore had no reasonable prospect of success.
4. The second ground concerned the educational needs of the claimants’ children. The inspector had summarised those needs, but had not expressly addressed the exceptional disruption likely to arise where travelling children were displaced without a settled place to go. Earlier decisions had treated that consideration as capable of carrying considerable weight. Although the judge considered that success on the point would require prolonged and skilful argument, the ground did not fall below the high threshold for strike-out. It was reasonably arguable and had to proceed to a full hearing.

Prior procedural history is described in the judgment, but no appeal from an earlier judicial decision is identified.