T & P Real Estate Ltd v London Borough of Sutton

The exclusivity principle requires a challenge to a purely public law decision to proceed through the appropriate public law procedure. A claimant cannot use Part 8 proceedings to obtain a declaration concerning the construction of a planning direction where no distinct private law right is engaged. Public action does not become private merely because it interferes with the claimant’s use of land. Exceptions to exclusivity arise principally where public and private law rights overlap. It is also an abuse of process to pursue parallel court proceedings concerning the same issue while a properly constituted planning appeal is pending, particularly where the court proceedings would become academic or duplicate relief already obtained.

T & P Real Estate Ltd sought a declaration concerning the construction of an exception in an Article 4 Direction made by the London Borough of Sutton. The issue was whether a prior approval granted before the Direction took effect continued to preserve permitted development rights after that approval had lapsed, so as to permit a later office-to-residential scheme under the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2015.

A related company, Lawlor (Holdings) Ltd, had appealed Sutton’s refusal of prior approval to the Planning Inspectorate under section 78 of the Town and Country Planning Act 1990. The same construction issue was therefore already before the planning appeal process. Sutton applied to strike out the Part 8 claim as an abuse of process.

1. Claim struck out. The Part 8 proceedings constituted a misuse and abuse of process.
2. The claim concerned the true meaning and effect of Sutton’s Article 4 Direction. That was a purely public law issue affecting potentially all landowners and developers within the area covered by the Direction. T & P relied on no private law right peculiar to its relationship with Sutton. The fact that the decision impaired T & P’s use of the Property did not give the issue a private law character.
3. Applying the exclusivity principle identified in O’Reilly v Mackman [1983] 2 AC 237, a person challenging the exercise of public law powers should ordinarily use the procedures provided for public law challenges. Here, the appropriate route was the section 78 planning appeal, followed if necessary by an appeal to the Planning Court under section 288 of the Town and Country Planning Act 1990.
4. The later developments in the law did not undermine the core principle that purely public acts must be challenged in public law proceedings. The exceptions discussed in Trim v North Dorset CC [2010] EWCA Civ. 1446 principally concerned situations where private and public law rights overlap. No such overlap existed here.
5. The parallel Part 8 proceedings were independently abusive. It was not a proportionate use of court resources to litigate the identical construction issue while the planning appeal was pending. If the planning appeal succeeded and no further appeal followed, continuation of the Part 8 claim would be academic and would duplicate the relief obtained.

The judgment was a first-instance decision on Sutton’s application to strike out the Part 8 claim. It records that a related section 78 planning appeal concerning the same issue was pending before the Planning Inspectorate, with a possible further appeal under section 288 of the Town and Country Planning Act 1990.