Greaves v Boston Borough Council

In a judicial review claim, standing must exist both when proceedings begin and when substantive relief is sought. A claimant who sells the affected property and moves away may lose standing where successors do not adopt or oppose the challenge. A binding compromise reached in correspondence may dispose of the claim; abandoning a threatened strike-out application does not, without more, abandon pleaded reliance on it. A planning condition is not necessarily invalid because it contains uncertainty or requires something impossible in one respect. The court should seek a true, benevolent interpretation giving practical effect to the evident intention. Disagreement between experts about enforcement methodology does not prevent construction or enforcement. Permission to appeal was refused because the grounds had no real prospect of success and there was no other compelling reason.

The claimants sought judicial review of planning permission granted for the installation of a wind turbine. They challenged the certainty of a planning condition. During the proceedings they sold the adjacent property and moved away, while the new owners neither opposed the permission nor adopted the claim. The parties had also reached a compromise in correspondence concerning withdrawal of the claim and costs.

Dove J dismissed the claim on three independent grounds: the condition was sufficiently certain when properly construed; the claimants lacked standing at the substantive hearing; and the compromise agreement provided a complete answer. On a renewed oral application, the Court of Appeal considered whether any ground disclosed an arguable error of law or another compelling reason for permission to appeal.

Sales LJ refused the renewed application for permission to appeal. Sullivan LJ had reached the same conclusion on the papers. Each of the three grounds relied on below was independently sufficient, and cumulatively there was no real prospect of success and no other compelling reason to grant permission.

1. Compromise. The claimants accepted that a binding compromise agreement had been made. The defendant’s decision not to pursue a threatened strike-out application did not amount to abandonment of its express reliance on the agreement as a pleaded defence. The agreement therefore provided a complete answer to the claim.
2. Standing. A person seeking the court’s assistance in public law must have a sufficient interest when relief is sought at the substantive hearing, as well as at the commencement of proceedings. The claimants’ sale of the property and departure from it, coupled with the new owners’ failure to oppose or adopt the proceedings, gave the judge an adequate basis to find that standing was absent. This was not penalisation for protecting their interests, but the application of ordinary standing principles.
3. Planning condition. Uncertainty, including an aspect of a term being impossible to fulfil, does not necessarily invalidate a legal instrument. The court may give the provision its true interpretation so as to provide practical meaning and effect consistent with the clear intention of its maker. That approach applied to the planning condition and was reinforced by the benevolent construction of planning conditions.
4. Enforcement. Disagreement between experts about the appropriate methodology did not disable the court from construing the condition. The court could choose between competing methodologies. The planning authority could enforce the condition or seek a declaration as to its meaning before taking enforcement steps.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division): On a renewed oral application, Sales LJ refused permission to appeal. [2015] EWCA Civ 1095.
• High Court, Queen’s Bench Division: Dove J dismissed the judicial review claim on the grounds of the validity of the planning condition, loss of standing and a binding compromise agreement. [2014] EWHC 3950 (Admin).