Coates v The Secretary of State for Communities And Local Government & Anor [2017] EWCA Civ 940

[2017] EWCA 940 (Civ)Case No C1/2015/2647
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
HIS HONOUR JUDGE PELLING QC (sitting as a Judge of the High Court)
CO/4839/2014
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/07/2017
Before
LADY JUSTICE GLOSTERLORD JUSTICE BURNETTLORD JUSTICE SALES
Between
Alan CoatesAppellant(1) The Secretary of State for Communities and Local GovernmentRespondents(2) East Riding of Yorkshire CouncilRespondent
Dominic De Souza and Oliver Newman (instructed by Ralli Solicitors) for AppellantsGwion Lewis (instructed by Government Legal Department) for First RespondentNicola Allan (instructed by the legal department of the Second Respondent) for Second RespondentHearing Hearing date: 21 June 2017
Judgment Approved

Introduction

[1]There are before the court distinct appeals in relation to two decisions by HHJ Pelling QC sitting as a judge of the High Court in relation to an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of a planning inspector (Diane Lewis) appointed by the Secretary of State in relation to a site of some 5.6ha located at Lakeminster Park, Hull Road, Beverley. The inspector’s decision letter is dated 5 September 2014 (“the DL”). The Secretary of State is the first respondent to the appeals. The second respondent (“the Council”) is the local planning authority in relation to the site.[2]Part of the site has park homes located on it. According to planning permission granted for the site in 2006, the park homes are supposed to be only for holiday use and persons who acquire them also sign licence terms making this clear. Despite this, numbers of the park homes on the site were occupied as full time residences. Eventually, the Council issued enforcement notices to prevent this.[3]The owner of the site, Lakeminster Park Limited (“Lakeminster”), and some owners of park homes appealed to the Secretary of State against these notices and also sought retrospective planning permission for full-time residential occupation of the park homes. The appeals were first heard at an inquiry before a different inspector in June 2013, leading to decisions dismissing the appeals in July 2013. Those decisions were challenged in court and were quashed, with the appeals being remitted for re-determination.[4]There was a fresh inquiry in June and July 2014 before a new inspector. By her decision, the inspector upheld the enforcement notices with minor modifications and refused to grant retrospective planning permission for residential use of the park homes.[5]On 17 October 2014, Lakeminster and Mr Alan Coates, who resided in a park home on the site, issued an application under section 288 of the 1990 Act to quash this new inspector’s decision. When referring to Lakeminster and Mr Coates together, I will call them “the claimants”.[6]In parallel with the proceedings pursuant to section 288,(a) a criminal prosecution was brought against the controlling shareholder of Lakeminster, a Mr Flannigan, in relation to what was alleged to be fraudulent deception of purchasers of park homes at the site to induce them to believe that they would be entitled to reside full-time in the park homes and(b) claims were advanced by various park home owners, acting pursuant to arrangements with a firm of solicitors called Gosschalks, against other firms of solicitors who were alleged to have given them defective advice when they purchased their park homes.[7]An application under section 288 is brought by a claim under CPR Part 8. The current position under Part 8 and the relevant Practice Direction is that permission is required to make an application under section 288, in the same way that permission is required to bring a claim for judicial review. But at the time the claimants brought their claim, there was no permission requirement. It was (and is) a requirement under Part 8 that the claim form should state the remedy which the claimant is seeking “and the legal basis for the claim to that remedy” (CPR Part 8.2(b)(ii)).[8]The position of the Council and the Secretary of State was that the claim form issued by the claimants did not set out any proper or sustainable basis for the relief claimed. Nor had any witness statement been served by the claimants in support of their claim from which the grounds of claim might be discerned. The Council therefore issued an application on 24 February 2015 under CPR Part 3.4 to strike out the claim on the basis that the claimants’ statement of case disclosed no reasonable grounds for bringing the claim. The Council’s application was supported by the Secretary of State.[9]The Council’s strike out application came on for hearing before the judge on 14 April 2015. The claimants were represented at the hearing by Mr Clive Wolman of counsel. The Secretary of State and the Council also appeared by counsel. The judge made two rulings on that day. In the first ruling, he held that the claim form did not set out any proper grounds for relief and indicated that, subject to any application by the claimants to amend, it would be struck out. As the judge found, the claim form did not plead the points on which the claimants in fact wished to rely, as explained to him by Mr Wolman during the hearing, and instead pleaded points on which they did not wish to rely. No complaint is made about that ruling on this appeal. It is accepted that the claim form as it stands does not disclose reasonable grounds for bringing the claim and, if unamended, was properly to be struck out.[10]However, the judge did not strike out the claimants’ claim there and then. Instead, he allowed the claimants and their counsel a short time to decide what to do, and in particular to decide whether to seek an adjournment to allow time for them to produce an amended statement of grounds. We were told that the court reconvened after about 10 minutes. We were not told whether this was because the judge was only prepared to allow that amount of time or because that was all the time that Mr Wolman required with his clients to decide what to do. Mr Wolman had already spent part of the first hearing explaining to the judge the substantive points on which the claimants would wish to rely in support of their claim: see para. [34] of the judge’s first ruling of 14 April 2015.[11]Mr Wolman applied for an adjournment for a few days in which to plead amended grounds of claim and explained the two points which he said the claimants would wish to plead as amended grounds. In the judge’s second ruling on 14 April 2015, he refused the application for an adjournment. He did so on the basis that the two proposed amended grounds had no real prospect of success, so an adjournment would serve no useful purpose. The first proposed ground was that the condition in the 2006 planning permission and in the licences granted to park home owners requiring that park homes should only be occupied for holiday use was ambiguous and unclear. The judge held that there was no ambiguity. The second proposed ground was that the inspector should not have proceeded on the basis of a statement of common ground agreed by all parties at the inquiry (including Lakeminster and Mr Coates) that the planning permission granted in 2006 extinguished any subsisting use rights with the result that there was no fall-back position for planning purposes.[12]On this appeal, again, it is not submitted that the judge erred in his assessment on the basis of the materials and submissions before him that both the proposed amended grounds were arguments without any prospect of success. It is accepted that they did not constitute arguable grounds of claim. Nonetheless, it is submitted that the judge acted unfairly and precipitately in refusing the adjournment, which if granted would have allowed the claimants to amend to plead other grounds of challenge to the inspector’s decision (not put before the judge) which would have been meritorious and would have had a real prospect of success.[13]The consequence of the two rulings made by the judge on 14 April 2015 was that the claimants’ claim was struck out. This is the first decision (“the April decision”) which is under appeal to this court, pursuant to a first notice of appeal issued by the claimants.[14]Some months after the claim was struck out, the claimants also made an application back to the judge pursuant to CPR Part 3.1(7). That provision sets out a general power for the court to vary or revoke an order. By this application, the claimants asked the judge to revisit his decision to strike out the claim. Lakeminster was again represented by Mr Wolman. Mr Coates was represented by Mr Richard Wald of counsel. This application was heard in October 2015 and led to a further decision of the judge, dated 6 November 2015 (“the November decision”), in which he dismissed this application. This is the second decision under appeal to this court, pursuant to a further notice of appeal.[15]In the November decision, the judge correctly directed himself by reference to the leading authority of Tibbles v SIG Plc [2012] EWCA Civ 518. He reviewed six new grounds of claim which the claimants proposed to advance if permitted to amend their Part 8 claim form and dismissed each of them, either because they impermissibly undermined the principle of finality in litigation which was (in line with Tibbles) to be accorded great weight in relation to an application under CPR Part 3.1(7) or because they were unarguable, or both. It is unnecessary to review all six proposed grounds, because it is now accepted that the judge was right to dismiss three of them. I discuss the remaining three below.[16]The appeals were originally brought by both Lakeminster and Mr Coates. Permission to bring the appeals was granted by Lindblom LJ. Lindblom LJ also considered an application by the claimants to adduce further evidence in the appeals. He dismissed that application on the papers. The application was renewed at an oral hearing before me on 3 February 2017, and I too dismissed it: [2017] EWCA Civ 371.[17]The criminal trial of Mr Flannigan commenced in May 2017. The prosecution witnesses gave their evidence and were cross-examined. As summarised by the trial judge, HHJ Watson, the defence case centred around the suggestion that each of the purchasers of park homes at the site did in fact know of the “holiday” provision in relation to their park homes and that what was said to them by Mr Flannigan as to the nature of permitted occupancy was not false and was entirely in keeping with the planning permission granted by the Council in 2006: see para. [4] of HHJ Watson’s ruling of 3 April 2017 on Mr Flannigan’s submission of no case to answer. On 3 April 2017, HHJ Watson ruled that there was no case to answer in relation to all but one of the counts against Mr Flannigan, and that even that count could not be allowed to proceed to trial as formulated.[18]On 26 May 2017, the claimants issued a further application to adduce further evidence on appeal. The further evidence was filed with the application, but no explanation was given of why it was said that it would be right for this court to admit the further evidence. The further evidence relates to the appeal against the judge’s November decision. Its admission is opposed by the Secretary of State and the Council. Some of the further evidence is material derived from the criminal trial of Mr Flannigan, which was not available at the time of the November decision. However, the Secretary of State and the Council say that the further evidence is not of a character which could have had any bearing on the conclusions reached by the judge in the November decision and that it should not, therefore, be admitted on the appeal.[19]Shortly before the hearing before us, Lakeminster withdrew its appeals. Accordingly, the appeals proceeded as appeals by Mr Coates alone. Mr Coates also pursued the application to admit further evidence. On 19 June 2017, Mr Coates served a supplementary skeleton argument setting out submissions why he contends it would be right for this court to give permission for the further evidence to be admitted.[20]At the hearing before us, Mr Coates was represented by Mr De Souza and Mr Newman (who did not appear below), who shared the oral advocacy between them. The court indicated that it would look at the proposed new evidence de bene esse and would give a ruling on its admission as part of the judgment on the appeals: see below.[21]As explained to us by Mr De Souza and Mr Newman, the grounds of appeal which remain live before us are as follows. In relation to the April decision, the sole ground of appeal is that it is said that the judge erred in refusing to grant the claimants an adjournment to allow them to re-plead their claim. In relation to the November decision, the following three grounds of appeal are relied on, in relation to grounds of application to the judge under CPR Part 3.1(7) and dismissed by him: i) The inspector made a mistake regarding her appreciation of the planning position in relation to the site. Instead of finding that the 2006 planning permission extinguished any subsisting use rights, she should have found that the relevant part of the site constituted previously developed land because of activities by its previous owner, Mr Brian Rushworth. Mr Rushworth had covered part of the site with building rubble in 1980 to raise its level to counter flooding, in order to be able to make use of planning permission granted in about 1979 for use of the land as a caravan site. The evidence in support of this case relied on by the claimants was a witness statement of Mr Rushworth dated 7 September 2015, adduced at the hearing before the judge leading to his November decision. I call this Ground (i); ii) The inspector was mistaken in her appreciation about the position of residents living in park homes at the site who did not appear or make representations at the inquiry. She had to assess claims based on Article 8 of the European Convention on Human Rights (“ECHR”) (right of respect for a home and family and private life) in relation to residents living in park homes at the site, advanced in answer to the enforcement notices and in support of the application for retrospective planning permission. Certain residents gave evidence or made representations at the inquiry in relation to the case under Article 8, but many did not. The inspector recognised that there was potential for interference with the Article 8 rights of each resident and that her consideration had to take account of all the residents, whether they took part in the inquiry or not (DL para. 147). However, she made her assessment on the basis of the (limited) evidence available to her (DL para. 151), and is criticised for doing this. It is said that she should have examined more closely the reasons why other residents had not adduced evidence of their position, and should have appreciated that they had been put under pressure by Gosschalks not to participate in the inquiry. It is also said that she made an illegitimate and incorrect assumption that they had not taken legal advice about their position when they acquired their park homes and improperly treated that as a factor weighing against their Article 8 claims: see para. 48 of the skeleton argument for Mr Coates. In fact, so it is said, there are indications that they had taken legal advice and had been given incorrect advice regarding their rights to use their park homes as their full-time residences. I call this Ground (ii); and iii) Those park home owners who used their park homes as their full-time residences paid full council tax to the Council, reflecting their full-time occupation of their park homes and demonstrating that the Council was aware that they were using them as full-time residences. The inspector and the judge should have found that this meant that the Council was prevented from enforcing the condition regarding sole holiday use of park homes in the 2006 planning permission, on the basis that it was unlawful for the Council both to approbate and to reprobate full-time residential use of the park homes. I call this Ground (iii).[22]Mr Coates’s application before us to adduce further evidence in support of his appeal against the November decision relates to each of these three grounds of appeal, as follows: i) In relation to Ground (i), an application to adduce further evidence in the form of transcripts of the evidence of Carl Copestake, Susan Hunt and Terence Horton from the trial of Mr Flannigan (sub-paras. c, d and e of para. 10 of Mr Coates’s supplementary skeleton argument). (Once it was pointed out that the items referred to in sub-paras. a and b of para. 10 of that skeleton argument had already been ruled out by my ruling of 3 February 2017 on the previous application to admit new evidence, Mr De Souza said that he did not ask for those items now to be admitted pursuant to the new application of Mr Coates under consideration here); ii) In relation to ground (ii) - as set out in para. 12 of Mr Coates’s supplementary skeleton argument – an application to adduce further evidence in the form of a witness statement of David Kemp, dated 24 May 2017 (a park home resident and sometime client of Gosschalks), certain critical comments made by HHJ Watson in the course of the trial of Mr Flannigan about the behaviour of Gosschalks and the Council, HHJ Watson’s ruling of 3 April 2017 on no case to answer and the transcript of the evidence of Paul Furness from Mr Flannigan’s trial. The statement of Mr Kemp explained, in particular, why he did not give evidence or make representations at the inquiry, because he had been advised by Gosschalks that this might harm his and other residents’ civil claims against the solicitors who advised them in relation to their acquisition of their park homes, and that if he did take action which damaged such claims his contract with Gosschalks would be terminated and he would be liable for a large bill of costs. (Mr De Souza did not press the application to admit a witness statement of Susan Jones, sub-para. b of para. 12 of the supplementary skeleton argument, since he accepted that it added nothing of any significance; nor did he press the application to admit an email referred to at sub-para. e of para. 12, which had already been ruled out by my ruling of 3 February 2017); and iii) In relation to ground (iii) – as set out in sub-para. b of para. 15 of Mr Coates’s supplementary skeleton argument – the transcript of the evidence of Paul Furness from Mr Flannigan’s trial. (Mr De Souza did not press the application in relation to the Council’s 2008 enforcement file, sub-para. a of para. 15, which had already been ruled out by my ruling of 3 February 2017).

The decision of the planning inspector

[23]The decision of the inspector, as set out in the DL, is long and thorough. The salient points for present purposes are as follows.[24]The principal relevant planning history of the authorised use part of the site goes back to 1979, when permission was granted for the siting of caravans for holiday use and the storage of caravans on a defined area; subsequent permissions allowed for an expansion of that area and for its use for placing transportable holiday homes; planning conditions in relation to the static and touring caravans controlled the length of occupation and required that they be used as holiday homes (DL para. 8).[25]The immediate background to the enforcement notices which are the subject of the present proceedings is set out at DL para. 9:
“In November 2006 planning permission was granted for the change of use of the land from the siting of touring and static caravans and caravan storage to the siting of 169 park homes for holiday use together with associated landscaping. Condition 9 stated that the park homes shall be occupied for holiday purposes only. Condition 10 stated that the park homes shall not be occupied as a person’s sole or main place of residence. Condition 11 required the site owner/operator to maintain an up to date register of the names of all owners/occupiers of individual park homes and of their main address. The same reason was given for each condition – to ensure that the approved holiday accommodation is not used for unauthorised permanent residential purposes. The Council understood that the work which took place on the site related to that permission. In 2011 planning contravention notices were served as part of an investigation over permanent residential occupation of the park homes. The investigation was prompted by representations on a planning application to extend the tourist accommodation at Lakeminster Park.”
[26]The works at the site carried out by Lakeminster involved laying out roads and certain facilities and installing substantial park homes. From about 2008 these were sold to members of the public. Mr Coates purchased his park home at the site in 2008. In many or all cases, the owners of park homes signed licence terms which reflected the conditions regarding holiday use as set out in the 2006 planning permission.[27]Despite this, a number of owners of park homes treated them as their full-time residences and did not abide by the planning permission and licence conditions. Those who did so paid full council tax to the Council, reflecting their full-time residency at their park homes, of which the Council was aware.[28]On 6 September 2012 the Council issued enforcement notice EN2 and enforcement notice EN3. The breach of planning control alleged in notice EN2 was, “without planning permission the siting of caravans on the Land for permanent residential occupation as a sole or main place of residence”. The notice required cessation of the use of any caravan on the Land for permanent residential occupation as a sole or main place of residence and removal of the caravan from the Land.[29]The breach of planning control alleged in notice EN3 was, “without planning permission the material change of use of the Land from land for the storage of caravans and the siting of touring and static caravans for holiday use to use for the siting of caravans for permanent residential occupation and in addition, and without planning permission, unauthorised operational development comprising the following –(i) the construction of roads and paths, and(ii) development in association with and facilitating occupation of the caravans as a main place of residence, namely the construction and erection of decking, steps, railing, partitions, screening, hardstanding and paving, storage cabins, sheds and other domestic paraphernalia.” The notice required cessation of use of the Land and caravans for permanent residential use and removal of the caravans from the Land, together with the decking, steps and so forth.[30]In substance, the complaint was that Lakeminster had laid out the caravan site as a residential village and that owners of the park homes there had been occupying them as their main or sole residences, in breach of planning control. The inspector found that the development constituted a caravan site for permanent residential occupation by the settled population there (who were not travellers): DL para. 28.[31]At the time of the inquiry, there were 78 park homes on the site. The inspector considered and rejected an argument that all the land at the site constituted previously developed land (“PDL”), as was asserted by the claimants to be the case on a particular basis, finding that only about 14% of the land at the site had that status: DL paras. 24 and 35. This PDL argument is different from the PDL argument based on the witness statement of Mr Rushworth considered by the judge in his November decision which is relevant to Ground (i) of the appeal in relation to that decision. That new PDL argument was not presented at the inquiry.[32]The inspector found that the development of the site conflicted with the development plan and local planning policy: DL paras. 37 and 40-56. In particular, it conflicted with policy concerns to limit the scale of development in areas not designated for housing development and to protect the countryside. The inspector also found that the development did not constitute sustainable development, in that by reason, in particular, of absence of infrastructure and suitable design it did not result in an overall net positive contribution in economic, social and environmental terms: DL paras. 37 and 57-139. Ultimately, therefore, Lakeminster and the residents had to rely on their human rights arguments based on Article 8 and Article 1 of Protocol 1 to the ECHR (right to protection of property) if their appeals were to succeed: DL paras. 140-144.[33]The inspector considered the position under Article 8 at DL paras. 146-235. Although she recognised that if the appeals were dismissed the consequences for the residents would be very serious, in that they would have to cease living at the site and would have to remove their park homes, which means that their Convention rights were engaged (DL para. 147), she rejected the claimants’ case based on Article 8. The inspector correctly recognised that she should take account of the Convention rights of all residents, even if they did not take part in the inquiry process (DL para. 147). She held that the interference with the residents’ rights would be justified and proportionate and would strike a fair balance between the public interest and individual rights: DL para. 235.[34]The inspector correctly directed her assessment under Article 8 by reference to relevant authority. She noted that the information in relation to each household was different and in some cases there was none: DL paras. 151-152. She correctly noted, in line with guidance given in Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin), that her assessment could only be made on the basis of the evidence available - and this was in fact generally agreed at the inquiry: DL para. 151. It was not appropriate for the inspector to speculate about the position of residents, beyond taking account of the obvious impact upon them if the appeals were dismissed (DL paras. 147 and 153-181). An important consideration was that alternative accommodation would be available to displaced residents within a reasonable period, if necessary through the provision of social housing: DL paras. 162-172.[35]The inspector was careful to engage in individual structured assessments of the position under Article 8, where she had evidence before her to enable her to do that: DL paras. 182-234. In the context of those assessments, where evidence was available, the inspector looked more closely at the individuals’ knowledge about the “holiday only” conditions attaching to the park homes when they acquired them, and took that into account when assessing the question of fair balance in each case.[36]For instance, in Mr Coates’s case, she found that he “clearly was aware of occupancy restrictions that applied to park home sites” and that, in view of his professional background as an accountant and the financial importance of the purchase, it was surprising that he made no further inquiries before acquiring his park home, with the result that his case on interference with his human rights “is slightly reduced” (DL para. 189). His private interests were outweighed by substantial harm to the public interest if planning controls were not enforced: DL paras. 191-192. At DL 191 the inspector wrote:
“On the other side of the balance Lakeminster Park is a sizeable residential development in the countryside, in a location that is not supported by planning policies that seek to direct housing to more sustainable locations. The development of the site has widened the choice of homes in the Beverley area and provides accommodation suited to the housing needs and wishes of Mr and Mrs Coates and other residents who chose to live there. However, the scheme has not attained the necessary standard of design and amenity for all existing and future occupants. The scheme has not responded to a pressing social need as a result of a failure, without sound justification, to include or provide for affordable housing. The community’s need for more homes, including more accommodation to meet the particular needs of the elderly, is able to be provided in more appropriate locations identified through the development plan process. The objective of securing sustainable development has not been achieved and core planning principles have not been met to the detriment of the public interest. The harm is substantial.”
[37]There is nothing in the structured assessment for Mr Coates which suggests that his awareness of the usual position in relation to park homes or his failure to obtain advice at the time of the purchase of his park home was a critical feature of the Article 8 assessment. That is also borne out by consideration of the way in which the inspector carried out the other individual structured assessments. For example, in the case of Mr Aldcroft, who is elderly and unwell, the inspector found that loss of his home would cause him and his wife severe distress (DL paras. 193-195); he was unaware of the planning restrictions when he bought his park home and would not have purchased it if he had known; and she was not critical of him for failing to obtain legal advice at the time (DL para. 197). Yet the public interest in upholding planning controls meant that the interference with his Article 8 rights would be proportionate and justified: DL para. 198. As another example, in the case of Mr and Mrs Hartley, the inspector made no findings that they were aware of the planning restrictions when they purchased their property and made no criticism of them in relation to a failure to seek advice; found that interference with their Article 8 rights would be serious; yet still found that the interference would be justified by the public interest factors she identified: DL paras. 216-217. The judge gave further examples of similar individual cases dealt with in the DL in his November decision: see [35].[38]It clearly emerges from consideration of the DL as a whole, and from the individual structured assessments in particular, that the knowledge (or absence of knowledge) on the part of residents of the planning restrictions when they acquired their park homes and the issue of whether they had sought legal advice and what advice they had received were not significant matters affecting the overall conclusion of the inspector that to uphold the enforcement notices and to refuse retrospective planning permission would not violate anyone’s rights under Article 8. Rather, the critical points in the inspector’s assessment were the substantial harm to the public interest arising from the breach of planning controls by a non-sustainable residential development in the open countryside coupled with the availability of alternative accommodation options for the residents.[39]This reading of the DL is underlined by the observations of the inspector at DL paras. 158-160, in commenting on the factors of lack of knowledge by residents of the planning status of the site and the failure to take legal advice. She found that “most, if not all, the residents could not have known the development as a whole was in breach of planning control … Therefore the unauthorised nature of the scheme and each park home does not make their position less strong” (DL para. 158). In assessing the submission of the Council that the failure by residents to take legal advice regarding restrictions on their occupancy of their park homes “was a serious omission in protecting their own interests” (DL para. 160), the inspector said, “In general terms I am cautious about the level of significance attributed by the Council to the failure to take legal advice, but the facts and particular circumstances in individual cases vary” (DL para. 160). She went on in DL para. 160 to discount the Council’s argument that individuals did not act reasonably in failing to seek legal advice, saying: “I doubt whether in most cases it was quite so clear cut because the witness statements show events, advice and timing varied in the lead up to the purchase or point of no return. Nevertheless an individual’s own decisions and conduct is a consideration and some responsibility has to lie with the home owner or occupier, especially given the factors that they rely on”.[40]This last reference to “the factors that they rely on” is to the factors which those individual residents who gave evidence or made representations at the inquiry referred to as being relevant in their cases, and leads in to the inspector’s structured assessments under Article 8 in those individual cases. The point being made by the inspector in DL para. 160 is that she would not treat failure to take advice as a significant factor in general or in relation to residents about whom she did not have detailed information, but might have regard to it in relation to individual structured assessments. As noted above, she did do that, but even there accorded no significant (let alone decisive) weight in those assessments to a failure to take legal advice.[41]The inspector emphasised the lack of significance of that factor in DL para. 161, where having just discounted the significance of seeking or not seeking legal advice as a factor in DL para. 160, she said:
“The main factors affecting an individual’s or family’s interests and the seriousness of the interference are most likely to be centred on alternative accommodation, vulnerability (including health and well-being), community spirit and friendships, and safety and security. The following general observations and conclusions [sc. on alternative accommodation, at DL paras. 162-172, health and well-being, at DL paras. 173-175, and community spirit and security, at DL para. 176] will inform the individual assessments.”
[42]The inspector was aware that 59 owners/occupiers of park homes at the site had instructed Gosschalks in connection with civil claims for losses arising out of misrepresentation by Lakeminster “and professional negligence by solicitors involved during the purchase of the park homes” (DL para. 7; she had received a letter from Gosschalks dated 19 June 2014 informing her about this). She therefore knew that some residents appeared to have taken legal advice when they purchased their park homes, about which they were unhappy. In the absence of evidence from them she had no more information than that. The inspector said, “This matter is relevant to these appeals only in so far as it may have affected the community spirit at the development and because the Council referred to the Gosschalks litigation as part of its case on human rights” (DL para 7). Similarly, at DL para. 160 she said:
“I am conscious of the separate litigation being pursued …” - that is to say, by the residents who had instructed Gosschalks – and emphasised that “the approach I will adopt will focus very specifically on the human rights considerations”
. This she duly did, without speculating about what legal advice residents who did not give evidence or make representations at the inquiry might have received and how it might have affected their decision-making processes when they acquired their park homes.[43]In my view, the inspector was entirely correct to proceed in this way, both because it would have been inappropriate to speculate about matters not in evidence before her and because the absence of advice and the quality of advice were not critical or decisive points affecting her conclusion in relation to Article 8.[44]Finally in the DL, the inspector considered the arguments based on Article 1 of Protocol 1: DL paras. 236-252. I mention this only for completeness, because the relevant argument before the judge and before us in relation to Ground (ii) was based on Article 8 rather than on Article 1 of Protocol 1: see para. [26] of the November decision and paras. 18 and 48 of Mr Coates’s skeleton argument for the appeal (albeit in parts of his argument on Ground (ii) he also makes reference to comments by the inspector in this section of the DL), and that is how the oral argument was presented to us by counsel for Mr Coates. In the context of Article 1 of Protocol 1, the inspector was prepared to give more weight to residents’ failure to take legal advice, as “a serious failure by them to take steps to avoid placing their property at risk” (DL para. 240). On a fair reading of the DL, this is a reference to the significance of this factor in those individual cases where evidence about this was available for the purposes of the structured assessments previously carried out by the inspector. In the following para. 241, the inspector emphasises that this was what she was talking about:
“I have considered the rights of Mr Coates and every individual resident within the limits of the information and evidence provided through the appeals.”
At DL para. 247, the inspector again emphasises that her focus has been on proportionality assessments in individual cases (a point also emphasised at DL para. 248), and expresses severe reservations about an aggregate approach as had been urged by the claimants to take all the residents together, despite the variations in individual circumstances and the absence of evidence in many cases; but the inspector stated that “the public interest arguments are very strong”, so even on an aggregate approach the public interest prevailed over the Convention rights of residents. This again shows that the precise circumstances in which a resident acquired their park home, and the absence of advice or the nature of the advice received, were not significant or critical features in arriving at the relevant balance and conclusions regarding the proportionality of the interference with Convention rights.[45]At DL para. 251 the inspector states that “The failure to seek legal advice is very relevant …”, but in context it is again clear that she is speaking about the position considered in the individual structured assessments, where she had evidence before her. This is not a statement about residents who did not participate in the inquiry. Their position was addressed briefly in DL para. 252, where the inspector simply noted, “The rights of other residents on the site, who do not wish to be associated with the [claimants’] case, also have to be recognised”, before arriving at her overall conclusion that the dismissal of the appeals would be proportionate and necessary and would strike a fair balance.

The decisions by the judge

[46]I have already sufficiently explained the April decision in the introduction, above.[47]In the November decision, the judge dismissed the first relevant new proposed ground of claim (based on a new argument that the site constituted previously developed land: see Ground (i) above) for two reasons. First, for reasons explained by the judge at [11]-[14], the primary evidence on which the claimants sought to rely for their new argument (in particular, the witness statement of Mr Rushworth), could with reasonable diligence have been discovered by those who acted for the claimants in the appeal to the inspector or by the time of the hearing of the Council’s strike out application in April 2015. Applying the guidance in Tibbles, in these circumstances it was not appropriate to re-open the April decision on the basis of this new evidence.[48]Secondly, and in any event, the point was unarguable on the merits: [15]. The placing of landfill on the site did not turn it into previously developed land, as defined in Annex 2 to the National Planning Policy Framework (“NPPF”), because the landfill had been placed on the site in circumstances “where provision for restoration has been made through development control procedures”, as a condition attached to a previous planning permission which provided for restoration. In the judge’s view, the fact that the restoration condition had not been complied with was beside the point for present purposes.[49]The submission of the claimants to the judge in relation to the second relevant new proposed ground of claim (in relation to legal advice obtained by residents who did not participate in the inquiry: Ground (ii) above), was presented by reference to their rights under Article 8: see para. [26] in the November decision. The judge dismissed this proposed new ground of claim on the basis that it disclosed no arguable grounds of challenge to the inspector’s decision: [26]-[38]. He set out DL para. 160 and referred to the way in which the inspector had dealt with the Article 8 claims at the inquiry, and held that on a proper reading of the DL “It is entirely clear … that the inspector considered the impact of legal advice only in relation to those particular individuals who appeared at the inquiry and had not obtained legal advice before proceeding and did not reject any of the Article 8 claims on the basis that a resident could have taken legal advice and by failing to do so failed to protect their own interests” ([32]). The judge concluded that this new ground of claim was unarguable, because the DL showed “very clearly that the Article 8 assessment would have been no different whether or not the inspector had known that most of the residents who did not appear at the inquiry had taken legal advice before purchasing park homes at the site and were planning to sue their former solicitors”; it was obvious that whatever the position about legal advice received by residents who did not participate in the inquiry, the proportionality assessment in favour of enforcement of planning controls would have been the same ([36]). The proposed ground of challenge therefore had no realistic prospect of success.[50]The judge dismissed the third relevant new proposed ground of claim (based on payment of council tax by the residents: Ground (iii) above), for two reasons: [16]-[20]. First, the fact that the residents had been paying full council tax was already known by the time of the inquiry (as was noted by the inspector at DL para. 159), so the claimants were or ought reasonably to have been aware of the point by the time of the hearing in April 2015, at which time they could and should have raised it as an argument to resist the striking out of their claim. Since they had had a reasonable opportunity to put forward that ground at that time but had failed to do so, it was not appropriate to re-open the April decision pursuant to their application under CPR Part 3.1(7) to allow them to take it at this later stage.[51]Secondly, the judge held that this ground was also substantively unarguable as a matter of law. Although it was said that by accepting payment of council tax and then taking enforcement proceedings the Council “was impermissibly approbating and reprobating”, as the point was explained to the judge it seems it was put more as a matter of legitimate expectation – i.e. that by demanding and accepting the payment of council tax, the Council created a legitimate expectation on the part of the residents that it would not enforce the restrictions on use of the park homes contained in the planning permission: [17]. The judge held that this was unarguable, because there was no unequivocal and unqualified assurance, of a type which would be required to engage the law of legitimate expectation, to the effect that no enforcement action would be taken, which could be spelled out of the Council’s conduct: [19]. Discussion The appeal against the April decision

Discussion

[52]There is no doubt that the court has jurisdiction to entertain an application under CPR Part 3.4 to strike out a Part 8 claim brought pursuant to section 288 of the 1990 Act in the same way that it may entertain such an application in relation to any other type of Part 8 claim. No-one made any submission to the contrary, either to the judge or to us.[53]I would note, however, that with the change in procedure in relation to section 288 claims referred to above, according to which permission has to be sought before such a claim is brought, in the future applications to strike out Part 8 claims brought pursuant to section 288 with the permission of the court should only rarely be made, if at all. In the present case, by contrast, since the claimants were able to launch their claim without seeking permission from the court, it was appropriate for the Council to invite the court to strike it out in exercise of its powers under CPR Part 3.4.[54]On his appeal in relation to the April decision, Mr Coates submits that it was unfair of the judge to refuse to allow an adjournment of the hearing of the Council’s strike out application, in order to give the claimants time to amend their claim form by introducing properly arguable grounds of claim. I reject that submission.[55]There was no unfairness in how the judge proceeded. His decision to refuse an adjournment in the circumstances was well within the legitimate scope of his discretionary case management powers.[56]By the time of the hearing on 14 April 2015, the claimants had been on notice since service of the Council’s strike out application notice dated 24 February 2015 that the Council would say that the claim form should be struck out for failure to state grounds of claim which were reasonably arguable. The claimants had therefore had about 7 weeks or so to review their grounds of claim and to ensure that they came to court with properly formulated amendments, against the possibility that their existing grounds of claim might be struck out. Moreover, by the time of the hearing before the judge the claimants were represented by counsel (Mr Wolman) and their submissions as formulated by him referred to additional grounds of claim which it was proposed would be advanced at trial. It is abundantly clear that the claimants had already been accorded a fair opportunity by the time of the April hearing to get their case in order. It is unclear why Mr Wolman did not come to the hearing with properly formulated amendments to the claim form and an application to amend. In my view, since there were no properly formulated amended grounds available for consideration, the judge was in fact already being generous to the claimants when after his first ruling that day he gave them time to consider their position and to ask for an adjournment.[57]There was no unfairness by reason of the time for such consideration being comparatively short. As I have said, it is clear that Mr Wolman had already worked out for the purposes of his submissions the additional grounds of claim which the claimants said they wished to present. Mr Wolman was not starting from scratch, but had already had a fair opportunity in advance of the hearing for reflection with his clients about the nature of the case they wished to present.[58]The judge’s ruling to refuse to accede to the application for an adjournment cannot be faulted. Mr Wolman was given another opportunity to explain the proposed amended grounds (he had already explained them once, in the course of his submissions leading to the judge’s first ruling on the strike out application). The judge considered both of the proposed new grounds of claim with care and gave compelling reasons why neither of them was arguable. It is now conceded that he was right about this in relation to both grounds.[59]In these circumstances, there was no proper purpose to be served by granting an adjournment for the claimants to formulate the two proposed amended grounds in the form of a pleading. It was already clear that they were unarguable and could not save the claim form from being struck out. In my view, the judge was clearly right in these circumstances to proceed to refuse an adjournment and to strike out the claim. It was not suggested to the judge that the claimants had any other possible grounds of claim up their sleeves, and it was certainly not incumbent on the judge to grant an adjournment on the basis of an entirely speculative possibility that given more time than they had already had to get their case in order they might be able to come up with different, and this time arguable, grounds of claim.[60]For these reasons, I would dismiss the appeal in relation to the April decision.

The appeal against the November decision

[61]The judge rightly followed the approach set out by this court in Tibbles. As Rix LJ stated in that case at para. [39(i)], although the rule in CPR Part 3.1(7) “is apparently broad and unfettered, … considerations of finality, the undesirability of allowing litigants to have two bites of the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion.” As Rix LJ also observed, “where facts or arguments are known or ought to have been known as at the time of the original order, it is unlikely that the order can be revisited …” (para. [31(v)]).[62]In my view, the judge’s decision to dismiss the claimants’ application pursuant to CPR Part 3.1(7) cannot be impugned. There was no material error by him. The further new evidence on which Mr Coates seeks to rely makes no difference to this assessment. Since it does not have any material impact on the outcome of the appeal, I would refuse permission to adduce it in evidence. I address the three grounds of appeal in turn.

Ground (i) (previously developed land)

(i) (previously developed land)

[63]The judge was entitled to rely on each of the reasons he gave for dismissing the application under CPR Part 3.1(7) to introduce this new ground of claim.[64]The first reason is a proper and legitimate application of the approach in Tibbles in respect of an application under this rule. By the time of the inquiry, and hence well before the April decision, the claimants knew about the planning permissions in existence before the 2006 permission which referred to placing landfill on the site, and indeed were aware that landfill had actually been placed on the site before 2006 (see para. [12] in the November decision and the evidence and submissions there referred to). They also knew by the time of the inquiry that issues regarding the previous use of the land and any arguments about its previous development were to be addressed. So they could and should with reasonable diligence have checked on the true position before the inquiry, and certainly before the April decision. Asking Mr Rushworth, who was the previous owner of the site in the relevant period, was an obvious thing to do. The judge was entitled to conclude on the materials before him that the relevant evidence in support of this new point could and should have been obtained before the hearing in April 2015, so that it was not appropriate to revisit his order pursuant to the April decision to strike out the claim by reason of this new ground of challenge.[65]In my view, the judge was also correct to hold that this new ground of challenge was unarguable as a matter of its substantive merit. At the time of the inquiry, Annex 2 to the NPPF defined Previously Developed Land in relevant part as follows:
“… land which is or was occupied by a permanent structure, including the curtilage of the developed land … and any associated fixed surface infrastructure. This excludes …. Land that has been developed for minerals extraction or waste disposal by landfill …. Where provision for restoration has been made through development control procedures; …”
[66]The relevant previous planning permission of 1964 gave consent for raising the level of land at the site “by tipping of rubble”, but with a condition that the entire site was to be covered by topsoil. That is a provision for restoration through development control procedures, and so on the face of the definition in Annex 2 precludes the site being treated as previously developed land on the basis of the rubble tipped onto it by Mr Rushworth. It appears that the provision for restoration was not complied with, and Mr Coates contends that the non-compliance is so long in the past that the condition has become unenforceable. He submits that this has the effect that, from the point of view of applying the definition in Annex 2, when the provision became unenforceable, the site turned from being land which could not be regarded as previously developed land into land which is to be regarded as previously developed land.[67]Like the judge, I do not regard this as a tenable approach to application of the definition in Annex 2. As a matter of ordinary meaning of the words used in the definition, it always remained the case in relation to the site that “provision for restoration has been made through development control procedures”, even if after passage of time such provision might have become unenforceable. Moreover, it is difficult to see why the drafter should have intended that the status of land as previously developed or not, according to this definition, should suddenly change depending upon whether a relevant provision for restoration has become unenforceable.[68]This analysis is not affected by the new evidence which Mr Coates seeks to adduce in support of this ground of appeal. None of it has any material bearing on the reasons the judge gave for dismissing the application before him. Accordingly, I do not consider that there is any proper reason for admitting the new evidence on the appeal, since it does not satisfy the second of the three familiar requirements set out in Ladd v Marshall [1954] 1 WLR 1489 which need to be satisfied before new evidence can be admitted on an appeal: the second requirement is that the evidence must be such that, if given, it would probably have had an important influence on the result of the case, though it need not be decisive.[69]Although the principle to be applied in relation to admission of new evidence on an appeal is whether such admission would accord with the overriding objective in CPR Part 1, it remains the case that the question whether the Ladd v Marshall criteria are satisfied remains a primary consideration: Vladimir Terluk v Berezovsky [2011] EWCA CIv 1534, [34]. The criteria set out in Ladd v Marshall are intended to reflect the balance of justice in relation to applications to admit fresh evidence and remain of relevance when applying the CPR “and indeed of powerful persuasive authority”: Sharab v Al-Saud [2009] EWCA Civ 353 at [52]; KV (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 119, [64]. In the present case, since the new evidence has no material impact on the arguments on the appeal, it would in my view not accord with the overriding objective to admit it.[70]For these reasons, I would dismiss the appeal in respect of the November decision in relation to Ground (i).

Ground (ii) (legal advice for residents who did not participate in the inquiry)

[71]In my judgment, the judge was also right to dismiss the ground of challenge referred to in Ground (ii) for the reasons he gave. As is clear from my own analysis of the DL above, I agree with the judge that there is no arguable case that the issue of what legal advice was taken by residents who did not participate in the inquiry would have made any material difference to the analysis and conclusions of the inspector in the DL. The judge was correct to make this assessment in relation to Article 8.[72]No separate argument was presented to the judge in relation to Article 1 of Protocol 1, nor to us (on my understanding of the grounds of appeal – which we were told were to be taken from Mr Coates’s skeleton argument - and the submissions made). For completeness, however, and to avoid any further argument, I should say that even if I have misunderstood what Mr Coates intended to argue on the appeal and the stray references in Mr Coates’s skeleton argument to passages in the DL in the section dealing with Article 1 of Protocol 1 were intended to raise Article 1 of Protocol 1 as a distinct ground of challenge to the lawfulness of the inspector’s decision (which was not something explained to us by his counsel), I would have refused permission for Mr Coates to appeal on this point. It was not a point taken before the judge below, either for the purposes of the April decision or for the November decision, and I can see no good reason why we should give permission to raise it as a new point on this appeal as a third bite of the cherry. It is in any event a point without merit: see paras. [44]-[45] above.[73]I would add generally in relation to Ground (ii) that it seems to me that the judge and the parties overlooked the passages in the DL at paras. 7 and 160 in which the inspector made it clear that she did in fact know that residents who were not participating in the inquiry had taken legal advice and were claiming against their former solicitors in relation to it. Had that been appreciated by the judge, it seems to me that he would have been entitled to dismiss this ground of challenge pursuant to the guidance in Tibbles on the further basis that the arguments in relation to it were already available to the claimants at the time of the April decision, but it was not at that time put forward by them as a proposed ground of challenge.[74]On this part of the appeal, counsel for Mr Coates submitted that the inspector was labouring under two mistakes of fact which vitiated her decision:(a) that residents who had not engaged with the inquiry process and had not provided evidence about their position had made a free and open decision not to do so, and(b) that such residents had not taken legal advice as to the position. I reject the submission in relation to both points.[75]Point (b) is contrary to the facts, which appear from the face of the DL at paras. 7 and 160. The inspector was aware that some residents who did not participate in the inquiry appeared to have taken legal advice when they purchased their park homes and that they were making claims against their former solicitors in relation to that advice. There was no mistake on her part. She rightly did not speculate further about the position of individuals who had not given evidence at the inquiry. It is in any event clear, on a fair reading of the DL as a whole, that the issue of legal advice sought and received was not a critical matter in the fair balance assessment made for the purpose of Article 8 (or, for that matter, for the purpose of Article 1 of Protocol 1). (It should also be pointed out that, if someone purchasing a park home sought legal advice and was misled by that advice into purchasing the park home because they did not appreciate the significance of the planning restrictions, they would have a right to claim compensation from the adviser, which would tend to diminish the impact upon them of enforcement of planning controls and thus weaken rather than strengthen their claims under Article 8 and Article 1 of Protocol 1).[76]As to point (a), it affords no arguable basis on which the inspector’s decision could be challenged. The inspector declined to speculate about why residents did not give evidence at the inquiry and made no assumptions in that regard. She was right not to do so. In any event, such evidence as is now available from Mr Kemp does not show that he had no free choice in the matter, but only that he took a considered decision not to give evidence in the inquiry having regard to the arrangements he had made with Gosschalks and where he thought the overall balance of his interests lay. He does not explain the detail of the arrangements with Gosschalks nor what they told him about giving evidence at the inquiry. On the basis of what he does say, and notwithstanding some of the comments made by HHJ Watson, I do not think the inference can be drawn that Gosschalks behaved inappropriately or put improper pressure on him to refrain from giving evidence.[77]Again, the proposed new evidence in respect of this ground of appeal makes no material difference in relation to the merits of the appeal. Accordingly, for the same reasons as in relation to the new evidence in respect of Ground (i) above, I would dismiss the application to adduce this new evidence as well.[78]In their submissions, counsel for Mr Coates placed considerable emphasis on remarks of HHJ Watson in the course of Mr Flannigan’s trial to the effect that the Council and Gosschalks had a cordial relationship. The innuendo appeared to be that the Council knew that Gosschalks was putting improper pressure on residents not to give evidence to the inquiry and should have drawn that to the attention of the inspector, although when pressed about this counsel for Mr Coates were unwilling to go this far. I should make it clear that I do not consider that HHJ Watson’s remarks or any other material to which we were referred support any such inference. Even if in some respects the relationship between the Council and Gosschalks might be described as cordial, that does not indicate that Gosschalks would have breached client confidentiality to explain to the Council the private arrangements they had with their clients and to describe advice they were giving them. There is nothing improper as such about the Council and Gosschalks having sought to develop a cordial relationship where it might have been in the interests of Gosschalks’ clients to foster a degree of co-operation. In any event, none of this affects the lawfulness of the approach the inspector adopted to her own assessment of the merits of the planning appeals nor any of the conclusions she reached.[79]To the extent that it is merely being said that the Council was aware that some residents who were clients of Gosschalks had taken legal advice when they purchased their park homes and should have told the inspector this, the point has no merit. As noted above, Gosschalks themselves wrote to the inspector on 19 June 2014, in a letter copied to the Council, to inform her that they were instructed by the owners/occupiers of 59 park homes at the site “in connection with civil claims for losses arising from misrepresentation by the site operators and professional negligence by solicitors involved during our clients’ purchase of their park homes.” This was the limit of the Council’s own knowledge about this. There was no additional obligation on the Council to inform the inspector about this, when it already knew she was properly informed about the matter. The inspector herself made it clear that she understood this part of the background circumstances: see DL paras. 7 and 160.[80]For these reasons, I would dismiss the appeal in relation to Ground (ii).

Ground (iii) (the council tax issue)

[81]It is submitted for Mr Coates that the judge misunderstood the argument presented to him at the hearing before the November decision. The judge treated it as an argument based on legitimate expectation, whereas really it was based on a distinct legal principle that the law prohibits approbation and reprobation where a party has made an election from which he cannot resile, which occurs where he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his present action is inconsistent: see Banque des Marchands de Moscou v Kindersley [1951] 1 Ch 112, 119 per Lord Evershed MR.[82]I am not persuaded that the judge did misunderstand the submissions made to him on behalf of the claimants, since it seems from his summary of the submissions at para. [17] of the November decision that although approbation and reprobation was mentioned, the thrust of the argument was in relation to legitimate expectation. We were not shown any transcript or skeleton argument from the hearing to demonstrate that a distinct argument based on the Banque des Marchands case was presented by the claimants to the judge in support of their application under CPR Part 3.1(7).[83]Be that as it may, even if the judge did misunderstand the full subtleties of the claimants’ argument, in my view the appeal under this ground still falls to be dismissed for reasons the same as or similar to those given by the judge.[84]First, since the relevant facts about payment of council tax were known, the argument on approbation and reprobation based on the receipt of full council tax could and should have been presented at the time of the hearing in April 2015, but was not. Applying the approach in Tibbles, therefore, the judge was clearly right to hold that the later presentation of the argument did not afford a good reason in November 2015 to re-visit the order made in consequence of the April decision.[85]Secondly, the argument on approbation and reprobation has no substantive merit. Those residents who paid full council tax were in fact resident full time for a period and hence were rightly charged with council tax at that rate for the period when they were so resident in their park homes. This was in no way inconsistent with the Council’s stance that planning controls in relation to the site should be respected and enforced. By collecting full council tax for relevant periods, the Council was doing no more than accepting that a resident had been a full-time resident at the site in those periods, which was the true factual position. That left open the question whether they should have been occupying their park home in that way and whether planning controls should be enforced against them in the future.[86]The proposed new evidence in relation to this ground of appeal has no bearing on the merits of the appeal, so for the same reasons as given above I would dismiss the application to admit it.[87]For these reasons, I would dismiss the appeal in relation to Ground (iii).

Conclusions

[88]I would dismiss the appeal in relation to the April decision and the distinct appeal in relation to the November decision. I would also dismiss the application by Mr Coates to adduce new evidence on the appeals.[89]I agree.[90]I also agree.

Cited in 2 later judgments