Secretary of State for Communities and Local Government v Vicente & Anor

An application made within the six-week period prescribed by section 288 of the Town and Country Planning Act 1990 may be amended after that period has expired. CPR rule 17.4 does not govern such an amendment because the statutory period is a substantive jurisdictional bar, not a relevant limitation period within that rule.

Permission is governed by CPR rule 17.1(2). The court may therefore permit a new or substituted ground even when it does not arise from the same or substantially the same facts. In exercising that discretion, the court must give substantial weight to speedy finality and certainty in planning decisions. It should also assess the proposed ground’s merits, the additional delay and prejudice caused by the amendment, its effect on the proceedings, and the public interest in determining a substantial public-law challenge.

An Inspector granted outline planning permission for residential development. Local objectors issued a challenge under section 288 of the Town and Country Planning Act 1990 within the prescribed six weeks, but their original grounds challenged the planning merits and were bound to fail. After the period expired, they sought to substitute a ground alleging procedural unfairness arising from defective notice of the original hearing and the conduct of a resumed hearing.

A deputy High Court judge held that CPR rule 17.4 did not apply and permitted the amendment under rule 17.1(2). The procedural ground had a real prospect of success, while the additional delay and prejudice were comparatively small. The Secretary of State appealed, contending that rule 17.4 governed directly or by analogy and that the statutory demand for finality precluded the substitution of an entirely new case.

The central issue was the source and scope of the court’s power to permit new grounds in an in-time section 288 challenge after the six-week period had expired.

1. The appeal was dismissed unanimously. The deputy judge had power to allow the respondents to substitute the procedural-irregularity ground after the six-week period had expired. Beatson LJ gave the principal judgment, with which Jackson and Lloyd LJJ agreed.

2. The six-week period in section 288(3) of the Town and Country Planning Act 1990 is a limitation period, but not a “relevant limitation period” for CPR rule 17.4. Unlike ordinary limitation under the Limitation Act 1980, the section 288 bar is substantive: once it expires without proceedings, the court lacks jurisdiction to question the planning decision. The 1990 Act is also not an enactment which allows amendments within rule 17.4(1)(b)(iii). Rule 17.4 therefore did not apply directly or by analogy.

3. CPR rule 17.1(2) governs an application to amend the grounds of an in-time section 288 challenge, both before and after expiry of the six weeks. Its language is applicable to public-law proceedings, unlike the language in CPR Part 19 which had caused difficulty in earlier authority. Resort to an inherent jurisdiction guided by inapplicable procedural provisions would create unnecessary uncertainty.

4. The rule 17.1(2) discretion is not confined by the requirement in rule 17.4(2) that a new claim arise from the same or substantially the same facts. Such a restriction would be unduly inflexible in public law and could prevent the court from addressing illegality, procedural impropriety or serious information discovered only after proceedings began. Earlier public-law authority also showed that a fresh ground could be added to an in-time statutory challenge in a proper case.

5. The discretion must nevertheless recognise Parliament’s short and inflexible time limit and the strong public interest in speedy finality and certainty in planning. Material considerations include the proposed ground’s merits, prejudice to defendants, planning authorities, developers and third parties, additional delay, and the amendment’s effect on the timetable. Once an in-time challenge is pending, interested parties already know that the decision cannot safely be relied upon until the proceedings conclude.

6. The deputy judge properly found that the procedural ground had a real prospect of success and addressed prejudice, delay and the public interest. The additional delay attributable to the amendment was comparatively small. It was proper to permit adjudication of the only seriously arguable issue rather than allow an otherwise doomed challenge to fail.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed by [2013] EWCA Civ 817. The court upheld the power to permit the substituted ground under CPR rule 17.1(2).

2. Administrative Court: A deputy High Court judge permitted substitution of the procedural-irregularity ground, refused permission for an environmental-impact-assessment ground, and made a protective costs order: [2012] EWHC 3585 (Admin).