Legal report

Battle lines are drawn on presentation of evidence.

Proceedings for questioning the validity of development plans, schemes, orders, decisions and directions under sections 287 and 288 of the Town and Country Planning Act 1990 must be lodged in the High Court using part 8 of the civil procedure rules.

Given that the deadline for lodging such claims is six weeks, applications are normally made without notice. The defendant - usually the secretary of state represented by the Treasury Solicitor's Department (TSol) - will naturally need a sufficient period of time to respond to claims. Rather curiously, defendants are not required to offer any defence at all. The only requirement for them is to put in a skeleton argument, following receipt of the claimant's case outline and within 14 days of the hearing.

Evidence timetable at issue

Late service of evidence by defendants in section 288 claims has become a matter of concern for the High Court and claimants. More prescriptive rules would be welcome in the interests of good administration and a just outcome in public law cases. Mr Justice Collins considered this point in a case brought by an action group against the allocation of a housing site in Herefordshire Council's unitary development plan.

"It is unfortunate that the civil procedure rules do not contain any timetable for the lodging of evidence or grounds to resist the claim by either the defendant or any interested party. This has meant in too many cases that such evidence and grounds have been left very much to the last minute. This is a thoroughly unsatisfactory state of affairs," Collins commented.

His ruling in Dinedor Hill Action Association v Herefordshire Council [2008] (Planning, 1 August, p5) held that claimants are entitled to apply for directions on the filing of evidence and a defence by the defendant. The court has the requisite case management powers to make such directions, he said.

Collins went on to reinforce his judgement and elaborate on his concern that part 8 is not suited to these types of claims in Bovale v Secretary of State for Communities and Local Government [2008]. He held that the court does have power under the rules to make these directions to further the overriding objective of dealing with cases justly.

In Bovale, he gave guidance that it will be expected that the defendant will serve evidence within ten weeks of the claim form. Where defendants choose not to serve evidence, they must serve their skeleton argument first. If they choose not to comply with this expectation, the claimant is encouraged to apply for a court order to direct service of at least summary grounds of defence.

Skeleton argument required

Collins commented that "at least then everyone would know where the battle lines are drawn". This turns current practice on its head for the TSol. It is little wonder that the department is unhappy with the findings in Bovale. When one considers that, unlike judicial review proceedings, there is no leave stage in these types of claim that might strip out the dead wood, its reaction is even less surprising.

Eversheds applied the findings of Bovale in a current section 288 claim and included an application for directions in the claim form. Last month Robin Purchas QC, sitting as a deputy High Court judge, granted an order requiring the secretary of state to serve the first skeleton argument. On behalf of the secretary of state, TSol unsuccessfully applied for permission to appeal against the order.

It had been reported that TSol would appeal against every such order until such time as the Bovale appeal is heard. At the time of writing, the secretary of state's appeal on the Bovale case had been adjourned indefinitely, with no reasons given. Perhaps this will now be left for the Civil Procedure Rule Committee rather than the Court of Appeal.

We can expect formalisation of the position in due course when the committee considers formal representations from interested parties on the application of part 8 to section 287 and 288 claims. An amendment to part 8 seems probable to formally require summary grounds of defence to be filed within a set period from the filing of the claim.

In the meantime, practitioners submitting claims under these sections can rely on Bovale. When submitting the claim, they should seek directions from the court that the defendants should be required to give early notice of their grounds of defence.


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