Coates v The Secretary of State for Communities And Local Government & Anor

A court may strike out a Town and Country Planning Act 1990 section 288 claim brought under CPR Part 8 where it discloses no reasonable grounds. Refusing an adjournment to formulate speculative further grounds is a legitimate case-management decision where the claimant has already had a fair opportunity to identify arguable amendments.

CPR rule 3.1(7) must be exercised consistently with finality in litigation. An order will ordinarily not be revisited where the relevant facts or arguments were, or with reasonable diligence should have been, available when it was made. Fresh evidence should not be admitted on appeal unless it could probably have an important influence on the result.

The owner and residents of a park-home site challenged an inspector’s decision upholding enforcement notices and refusing retrospective planning permission for permanent residential occupation. Their section 288 claim was struck out in April 2015 after the High Court refused an adjournment for proposed amendments. In November 2015, the High Court refused to reopen that order under CPR rule 3.1(7).

Mr Coates alone pursued appeals against both rulings after the site owner withdrew. The remaining issues concerned a new previously-developed-land argument, the inspector’s Article 8 assessment of non-participating residents, and whether the Council’s collection of full council tax prevented planning enforcement. He also sought to adduce evidence arising from related criminal proceedings.

1. Appeals and fresh-evidence application dismissed. Sales LJ, with whom Burnett and Gloster LJJ agreed, held that the High Court had acted fairly and within its case-management discretion in refusing an adjournment and striking out the unamended Part 8 claim. The claimants had had about seven weeks’ notice of the strike-out application and had no formulated arguable amendment before the court.

2. A section 288 claim may be struck out under CPR Part 3.4. In this case there was no purpose in adjourning so that admittedly unarguable proposed grounds could be pleaded. The judge was not required to allow time for a merely speculative search for other grounds.

3. The judge correctly applied Tibbles, [2012] EWCA Civ 518, to CPR rule 3.1(7). Finality, the avoidance of repeated opportunities to litigate, and the appellate process strongly curtail the apparently broad power to vary or revoke orders. The new previously-developed-land and council-tax arguments could and should have been advanced before the April order.

4. The previously-developed-land point was also unarguable. Land filled with rubble remained excluded by the definition in Annex 2 to the National Planning Policy Framework where a planning condition had made provision for restoration. Later unenforceability of that condition did not alter the fact that provision for restoration had been made through development-control procedures.

5. The inspector was entitled to assess Article 8 on the evidence before her and not to speculate about residents who had not participated in the inquiry. She knew that some residents had received legal advice and were pursuing claims against solicitors. In any event, the decisive balance concerned the substantial public interest in enforcing planning control and the availability of alternative accommodation, not the quality or existence of legal advice.

6. The proposed fresh evidence could not have had an important influence on the result. Applying the principles in Ladd v Marshall, [1954] 1 WLR 1489, and the overriding objective, its admission was refused.

7. Payment and collection of full council tax for actual full-time occupation was not inconsistent with the Council’s position that such occupation breached planning control and should be enforced against in future. It therefore supplied no arguable basis for approbation and reprobation or for reopening the order.

• Court of Appeal (Civil Division) — dismissed Mr Coates’s appeals and his application to adduce further evidence: [2017] EWCA Civ 940.
• High Court (HHJ Pelling QC) — in April 2015, refused an adjournment and struck out the section 288 claim; in November 2015, refused to vary or revoke that order under CPR rule 3.1(7).