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Court of Appeal allows new grounds of challenge to planning decisions beyond six week limit

Challengers to planning permissions can substitute entirely new grounds of challenge beyond the end of the strict six week limit for bringing a claim, the Court of Appeal has ruled.

Handing down judgment in Secretary of State for Communities and Local Government v San Vicente and Carden [2013] EWCA Civ 817, the Court of Appeal said that under Section 288 Town and Country Planning Act 1990, there was no restriction on the Court’s discretion to allow such amendments and no requirement that the new grounds bear any resemblance to those originally pleaded.

In the case the claimants, acting as litigants-in-person, had issued a challenge against a housing development within the six week period, which the developer applied to have struck out. However, ahead of the strike-out hearing, the Claimants instructed Richard Buxton Environmental and Public Law who applied to substitute entirely new grounds of challenge.

The Secretary of State and the developer argued that the Court could not allow the substitution because the new grounds did not arise out of the same or substantially the same facts as those originally pleaded, in reliance on rule 17.4 of the Civil Procedure Rules.

However, the Court of Appeal confirmed that the correct approach is that the Court has a broad discretion to allow a substitution after the end of the six week limitation period under rule 17.1(2)(b) of the Civil Procedure Rules.

In particular, the Court of Appeal did not consider there should be different standards between section 288 challenges and planning judicial reviews and, if anything, the existence of a strict limitation period weighed in favour of allowing amendments in proper cases.

The substantive hearing has now taken place in the High Court in respect of the ground which was permitted to be substituted. The Claimants have been successful.

Annabel Graham Paul of Francis Taylor Building, who represented the successful Claimants, said: “Notwithstanding the government’s attempts to make it harder to challenge planning permissions, the courts are still prepared to accommodate substantial, and ultimately successful, amendments”.

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