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High Court Reaffirms Exclusivity Principle, Striking Out Abusive Part 8 Permitted Development Rights Proceedings

Saira Kabir Sheikh QC

In striking out the claim form in T & P Real Estate, Limited v London Borough of Sutton PT-2019-000766, the High Court has acted firmly against abusive claims by developers who seek to circumvent the proper avenues for challenging local authority planning decisions. 
The claimant developer sought a declaration that it was entitled to Class O permitted development rights in respect of its scheme to convert offices to residential accommodation in Sutton town centre. Although the developer’s property was covered by Sutton’s Article 4 Direction removing such permitted development rights, it relied upon an exception for “any building or land in relation to which prior approval …has been granted, or … is treated as granted before 29th January 2015”, on the grounds that a prior approval for such a material change of use on the site had been granted in December 2014. Sutton refused the claimant’s application for prior approval, relying on the fact that the previous prior approval had lapse: in its view therefore no rights existed in respect of which prior approval could be granted.
The claimant brought proceedings for a declaration that, on a proper construction of the Article 4 direction, its property still benefited from Class O permitted development rights. The proceedings were commenced notwithstanding that a decision was pending in the claimant’s appeal against the defendant’s refusal of prior approval, brought under section 78 of the Town and Country Planning Act 1990. The claimant agreed that both sets of proceedings raised identical issues. 
Sutton, for whom Saira Kabir Sheikh QC appeared, applied to strike out the claim as an abuse of process. This application was brought on two bases, both of which were accepted by Deputy Master Bowles. 
First, Sutton argued that the proper construction of the Article 4 direction and its exception was quintessentially a matter of public law. As such, the exclusivity principle in O’Reilly v Mackman [1983] 2 AC 237 applied: it was abusive for a public law matter to be litigated by way of an ordinary private law action thus evading the particular provisions, in particular the protections given to local authorities, contained in the statutory scheme for challenging prior approval decisions under the 1990 Act, or decision of public bodies generally under Part 54 of the CPR. Deputy Master Bowles reaffirmed, applying Trim v North Dorset CC [2010] EWCA Civ. 1446, the core principles that purely public acts should be challenged only in public law proceedings. Those public law proceedings are the pending section 78 appeal, and any consequent further appeals provided for by statute. 
Secondly, Deputy Master Bowles agreed with Sutton that the bringing of proceedings for a declaration whilst the claimant’s statutory appeal was pending was an abuse of process, asserting the plain fact that “it cannot be other than abusive, in circumstances where a properly constituted appeal tribunal is seised of an appeal, to bring parallel proceedings in respect of the very same point” (paragraph 46 of the judgement). The court rejected the claimant’s argument that the Part 8 proceedings were a protection for developers in the local area, in the event that the claimant was successful on its section 78 appeal, Sutton did not appeal the appeal decision, but nevertheless continued to refuse applications for prior approval on the same basis. Not only would such a course of action by Sutton be “grossly implausible”, but parallel proceedings such as this were clearly wasteful of the court’s resources and thus not in accordance with the ‘overriding objective’ in Part 1 of the CPR. 
Saira Kabir Sheikh QC acted for the successful defendant, instructed by South London Legal Partnership. 

The judgment can be found here.PDF iconDownload PT-2019-000766 - Approved Judgment of Deputy Master Bowles - Handed down on 21 April 2020.pdf (410.52 KB)