Mon, 07 Dec 2020
Taking no for an answer: when is enough, enough?
In the recent case of R (on the application of Elizabeth Wingfield) v Canterbury City Council [2020] EWCA Civ 1588, the Court of Appeal considered two applications to re-open final appeals pursuant to CPR52.30. The two separate cases concerned the decision of Canterbury City Council to grant planning permission for separate, but adjacent, sites (“the Hoplands site” and “the Chislet site”).
Local resident, Ms. Wingfield, had initially sought judicial review of the Council’s decision to grant permission for the two housing schemes on the basis of alleged deficiencies in the approach taken to EIA and habitats assessments. Having twice been refused permission to appeal, the applicant sought to use CPR52.30 to re-open those orders; a provision which can be used in “very rare circumstances” [2]. By this stage, the merits of the applicant’s case had been considered by the courts on five separate occasions in respect of the Chislet site, and four times in respect of the Hoplands site.
CPR52.30(1) provides that neither the Court of Appeal nor the High Court will open a final determination of any appeal unless:
- it is necessary to do so in order to avoid real injustice;
- the circumstances are exceptional and make it appropriate to reopen the appeal; and
- there is no alternative effective remedy.
The Court considered that the appellant’s case for re-opening the question of whether permission to appeal should be granted was unarguable. The Court found that the appellant had failed to meet any, let alone all, of the criteria in CPR52.30 [100].
Significantly, however, the Court of Appeal considered the purpose and parameters of CPR52.30 stating that finality in litigation is a general rule of high public importance. It was found that this is particularly important in planning cases where there is a need for a speedy determination of issues relating to development and where many people other than those directly connected are affected by the outcome. The Court considered that it would subvert the arrangements of the planning court (and broader judicial review proceedings), if unsuccessful litigants could revive the same arguments repeatedly, and without limit, prolonging proceedings and delaying a certain and final outcome.
Finally, the Court also warned that litigants seeking to challenge a decision, and their legal representatives, should adopt a sensible, responsible approach and should refrain from abusive proceedings [9].
