planning refusal, is appeal worth it?

[Adsibob]

1 hour ago, oxo said:

I just dug out some numbers (love numbers) - only 2.5% of JRs are won by claimants (2018).. that's a high bar - wonder what he's thinking - bluff is already costing him in fees - he must know something we don't ?

 

Well according to the order you posted, he is "acting in person" which means he isn't incurring any fees (probably). 

[Temp]

5 hours ago, oxo said:

hello old friends - here we are back with some update ? 

the neighbour who objected to our planning application (which we got approved on appeal and about to start our build) - is now taking his claim to the High Court to review the appeal's decision.

any thought what that means for our finances and our project to get a home we've been waiting (to start) for 3 years now?

 

What is the date on the planning grant from the appeal?

 

Neighbour only has 6 weeks from then to bring the staturory review. 

[oxo]

1 hour ago, Temp said:

 

Answering my own question. It looks like you need to make sure the council are fighting it for you or do so yourself...

 

https://emlawshare.co.uk/resource/judicial-review-minimum-required-local-authorities/

 

 

I am surprised the council is named defendant. Council refused us planning on the basis of neighbour’s 90-page objection letter so the only defendant here should be the Inspector who dismissed all council’s and neighbour’s objections as unconvincing and granted us the permission. Why would council be asked to defend appeal if they were against permission in the first place? Unless the issue is something procedural that they have done something which allowed our appeal to succeed without them planning on it?

Thank you for all the links, very helpful and another twist and turn on our poor wee hours and more research hours and probably bills ?

[Temp]

I think the council are responsible for enforcing Appeal Decisions regardless of which side they were on originally. 

[oxo]

2 minutes ago, Temp said:

 

What is the date on the planning grant from the appeal?

 

Neighbour only has 6 weeks from then to bring the staturory review. 

He did it right on the day of 6-week expiry. He is a property developer and well versed in planning objections etc 

[Temp]

So i wonder how can the court give him more time if the original paperwork was flawed?

[oxo]

53 minutes ago, Adsibob said:

Well according to the order you posted, he is "acting in person" which means he isn't incurring any fees (probably). 

It says in the order he had to pay some £600 fee to register it. But if it all goes to hearing - there must be few more thousands I would think?

[Temp]

I expect you already know this but..  

 

https://www.lexisnexis.com/uk/lexispsl/planning/document/393788/5J82-TGD1-F18C-44CR-00000-00/Judicial_review_of_planning_decisions_overview

 

The limited nature of challenges to planning decisions has been emphasised on many occasions. The focus in a claim for judicial review is on the legality of the exercise of a public function.

Judicial review cannot be used to review the merits of a decision. It focuses only on the lawfulness of the way in which the decision was made or the action was taken.

[Temp]

2 minutes ago, oxo said:

It says in the order he had to pay some £600 fee to register it. But if it all goes to hearing - there must be few more thousands I would think?

 

And if he looses then your costs as well I think.

[oxo]

Just now, Temp said:

I expect you already know this but..  

 

https://www.lexisnexis.com/uk/lexispsl/planning/document/393788/5J82-TGD1-F18C-44CR-00000-00/Judicial_review_of_planning_decisions_overview

 

 

 

Yey thank you - I know it from an hour ago ?

he served it on 4.2, which is 6 weeks to the day from 24.12 and they sent to us today which is 3 days later 

[Gus Potter]

Have you considered making an FOI (freedom of information) request.

 

I can be a helpful tool.

 

I have had a recent application stalled. The officer kept phoning me so I had nothing in writing, also was writing me fobbing off emails to cover themselves and stall.

 

Spelled it out to them that I was going to make an FOI alongside making a formal complaint and want to see all the info including all the in house emails.. he said you won't get to see them all if any. I said that is exactly what I need as now I know where you are hiding stuff and where to concentrate my efforts.

 

Two days later it's all sorted!

 

 

 

 

 

 

[Adsibob]

4 hours ago, oxo said:

In the High Court of Justice CO Ref: Queen’s Bench Division CO/415/2022 Planning Court Administrative Court In the matter of an application for Statutory Review pursuant to s.288 of the Town and Country Planning Act 1990

 

PAUL EVIL OBJECTING NEIGHBOUR

 

versus

 

(1) THE SECRETARY OF STATE FOR LEVELLING UP, HOUSING AND COMMUNITIES

(2) LONDON BOROUGH OF HAMMERSMITH AND FULHAM

(3) OXO On the Court

 

making an order of its own initiative – CPR part 3.3(4

 

The Claimant shall file Form N208PC (Planning Court Statutory Review Claim Form) in substitution for the N461PC Judicial Review Claim Form within 7 days of receipt of this Order

 

Reasons: The Claimant acting in person has lodged this claim by way of judicial review on 04 February 2022. However, the only means by which the validity of a decision made on appeal under s.78 of the Town and Country Planning Act 1990 may be challenged is by way of statutory review under s.288 of the 1990 Act. By Civil Procedure Rules, Practice Direction 8C, paragraph 4.1, the defendants are the minister of the appropriate government department and the authority directly concerned with the decision. The Claimant has named The Planning Inspectorate as the 1st Defendant and oxo as Interested Parties. However, the Planning Inspectorate is an executive agency of the Ministry of Levelling-Up, Housing and Communities and there is no provision for “interested parties” to be joined to claims brought under CPR Part 8. In this case, the correct defendants are

 

the Secretary of State for Levelling-Up,

Housing and Communities, the London Borough of Hammersmith and Fulham and

OXO.

 

This Order is made to remedy the procedural defects.

I've just had another look at this, focusing on the legislative basis upon which the appeal is brought, which is section 288 of Town and Country Planning Act 1990. That is an incredibly narrow basis upon which to appeal. I have pasted it below:

 

288Proceedings for questioning the validity of other orders, decisions and directions.

(1)If any person—

(a)is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—

(i)that the order is not within the powers of this Act, or

(ii)that any of the relevant requirements have not been complied with in relation to that order; or

(b)is aggrieved by any action on the part of the Secretary of State [F1or the Welsh Ministers] to which this section applies and wishes to question the validity of that action on the grounds—

(i)that the action is not within the powers of this Act, or

(ii)that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.

 

I think there is virtually no chance he will win, but I don't know the facts. Maybe you bribed the Planning Authority. Or maybe you blackmailed them. Or maybe they were drunk.

 

 

 

 

 

 

Edited February 8, 2022 by Adsibob

[AliG]

I agree with what is being said here in the last few posts.

 

Basically anyone can fill out the form asking to challenge a planning appeal. So far he clearly has not paid a lawyer, hence he filled in the wrong form. Tbh I didn’t know you just had to fill in a form, useful info.

 

The issue of who it is served on is not clear. The guidance suggests just the minister, but practicality suggests that you and the council are involved so should be served also.  The N208PC form does have a space to fill in interested parties.

 

I think the thing is that you have to be included in case the others don’t defend the case.

 

It seems like you were served which has to happen within seven days.

 

First point is the rules say 6 weeks to file, no exceptions. If he filled out the wrong form I am not clear the judge can give him an extra week to fill out the right form. He will also then have 7 days to serve you after filling out the form again. What he has served you so far is incorrect. You then have 21 days to file you received it.  But first I would apply to get it thrown out on missing the 6 week deadline.

 

The papers you are served with should show if he is seeking an interim remedy, basically an injunction.

 

As @Adsibob says the reasons to challenge are very narrow and he is probably wasting his time. Maybe he just enjoys messing you around. The court won’t consider the merits and whether they want to even take up the case until the paperwork has been correctly filed.

 

 

 

 

 

 

 

[oxo]

just had a consultation with the planning advisor who got our appeal through - he's no wiser what the basis of the order from the claimant side and we just have to wait for 2 weeks to receive all his papers ?

apparently due to the fact that the order reached us and mentioned "to remedy procedural defect" of not addressing the right defendants in the first place - we are not able to throw it out

but we are going to have a more legally minded mind to consider the background for now. more costs unavoidable it seems ?

but I was so much more prepared for this call thanks to all your comments and learning - this is like a university here, loving it, more virtual Champagne to you all ?

maybe one day the real stuff too ??

[oxo]

10 hours ago, Gus Potter said:

Have you considered making an FOI (freedom of information) request.

 

I can be a helpful tool.

 

I have had a recent application stalled. The officer kept phoning me so I had nothing in writing, also was writing me fobbing off emails to cover themselves and stall.

 

Spelled it out to them that I was going to make an FOI alongside making a formal complaint and want to see all the info including all the in house emails.. he said you won't get to see them all if any. I said that is exactly what I need as now I know where you are hiding stuff and where to concentrate my efforts.

 

Two days later it's all sorted!

 

 

 

 

 

 

interesting thought thank you but what would we be requesting and from who - from the LA who refused planning or the Inspector who allowed planning?

[Adsibob]

On costs, although the general principle is that the loser pays the winner's reasonable costs, the Court can depart from that rule and has a very a very wide discretion to take into account all of the circumstances of the case, including:

The extent to which a party has been successful in the proceedings (Civil Procedure Rule 44.2(4)(b)) . Moreover, as i explain below, there is probably an important exception here to the general rule.

The conduct of the parties, including any failure to follow the relevant Pre-Action Protocol  and the pursuit or defence of issues that were unsustainable or should have been conceded (Civil Procedure Rule 44.2(4)(a) and (5)).

The list of Pre-Action Protocols is here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol

I think, but am not absolutely sure, that the relevant Pre-Action Protocol is likely to be the one for Judicial Review, though worth checking with a lawyer in this field. That can be found here: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv. Read through it and check if your neighbour has complied with it. It's likely he hasn't. You could scare him by pointing this out, although I'm not sure it will make all that much difference as I think there is an exception in judicial review proceedings which is that as an interested party, you are only entitled to your costs of filing an acknowledgement of service (paragraphs 7.4-7.5, PD 54A).

Edited February 8, 2022 by Adsibob

[Adsibob]

1 minute ago, oxo said:

interesting thought thank you but what would we be requesting and from who - from the LA who refused planning or the Inspector who allowed planning?

A freedom of information request could be counterproductive. You are not in dispute with the LA. You are in dispute with your neighbour. You don't want to gather documents from the LA which may assist your neighbour. If he wants to go to the trouble of getting information from the LA, then that's up to him, but strategically I would be minded to do nothing, other than: (i) consider whether to appeal this odd Order; and (ii) consider whether you should file an acknowledgement of service.

[Mr Punter]

I would not bother doing anything about this.  It is between Mr Evil and the Council.  You won't be liable for costs.  Don't waste your money on fees.

[joe90]

24 minutes ago, Mr Punter said:

I would not bother doing anything about this.  It is between Mr Evil and the Council.  You won't be liable for costs.  Don't waste your money on fees.

I tend to agree, my knowledge is based on fighting fir planning and  winning on appeal. I agree that mr Evil is challenging the councils planning permission , you are an “interested party” purely because the planning permission Was for your build. If it were me I would crack on with the build, you have not been ordered  to stop building (have you?), so until you do, get on with it. ?

[oxo]

10 minutes ago, joe90 said:

I tend to agree, my knowledge is based on fighting fir planning and  winning on appeal. I agree that mr Evil is challenging the councils planning permission , you are an “interested party” purely because the planning permission Was for your build. If it were me I would crack on with the build, you have not been ordered  to stop building (have you?), so until you do, get on with it. ?

Actually the council refused us, so they will probably be pleased to see JR thinking "I told you so oxo"

 

We got planning on appeal by the Secretary of State's Inspector decision - which came quicker than we thought and where all council's objections were listed as 'unconvincing' - inspector wasn't mincing her words against mr evil's objections either

 

Secretary of State are the 1st defendant now, council is now 2nd (not sure why they would bother with it at all but as Temp here says it's because they must enforce our appeal - they may choose to participate in defence, but I wouldn't count on them as reliable dendendant - they rejected our permission)

 

We became 3rd defendant through court order (claimant only listed us as interested party) - effectively we were 'upgraded' by the JR's lawyer from interested party to defendant probably because they know that council won't bother and the Secretary Of State - we are told - don't like to litigate and they would rather agree to their decision being quashed and go to re-run our appeal with yet another inspector (whilst addressing whatever unknown mistakes they may have made)

 

we are looking for many months delay here and if we eventually lose properly (i.e. appeal/application will be quashed completely) - all that we built now (according to the planner's view) - may be asked to be demolished. however insane this may sound as Adsibob says.

 

basically we are stuck by the sound of it and need to wait for 2 weeks to see what the procedural grounds mr Evil is relying on ?

 

just when I started to plan a beauty parade of drainage beauticians  ?

 

[oxo]

31 minutes ago, joe90 said:

I tend to agree, my knowledge is based on fighting fir planning and  winning on appeal. I agree that mr Evil is challenging the councils planning permission , you are an “interested party” purely because the planning permission Was for your build. If it were me I would crack on with the build, you have not been ordered  to stop building (have you?), so until you do, get on with it. ?

but you are right - we were not asked to stop the build, just thinking why our planner thinks we must wait - will investigate further

[SimonD]

This whole thing stinks to high heaven. @oxoGiven your confusion over the order you received, I suspect you did not receive a statement from the court of your right to make an application to have the order set aside, varied or stayed? If you didn't the court has erred from procedure. See https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#3.3  paragraph 4. Or as to quote here:

 

(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

(5) Where the court has made an order under paragraph (4) –

(a) a party affected by the order may apply to have it set aside^(GL), varied or stayed^(GL); and

(b) the order must contain a statement of the right to make such an application.

(6) An application under paragraph (5)(a) must be made –

(a) within such period as may be specified by the court; or

(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.

 

However, what you need to do is contact the court in writing immediately  to question the order and lack of direction as per the above paragraphs as then the court cannot then claim you were out of time.

 

I fail to see how you can be defendant in relation to a decision you did not and cannot make which is probably what you need to take up with the court in relation to this order. You are merely an interested party, because you cannot defend the decision!

[oxo]

3 minutes ago, SimonD said:

This whole thing stinks to high heaven. @oxoGiven your confusion over the order you received, I suspect you did not receive a statement from the court of your right to make an application to have the order set aside, varied or stayed? If you didn't the court has erred from procedure. See https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#3.3  paragraph 4. Or as to quote here:

 

(4) The court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

(5) Where the court has made an order under paragraph (4) –

(a) a party affected by the order may apply to have it set aside^(GL), varied or stayed^(GL); and

(b) the order must contain a statement of the right to make such an application.

(6) An application under paragraph (5)(a) must be made –

(a) within such period as may be specified by the court; or

(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.

 

However, what you need to do is contact the court in writing immediately  to question the order and lack of direction as per the above paragraphs as then the court cannot then claim you were out of time.

 

I fail to see how you can be defendant in relation to a decision you did not and cannot make which is probably what you need to take up with the court in relation to this order. You are merely an interested party, because you cannot defend the decision!

maybe this will help -

 

Following consideration of the documents lodged by the Claimant Order by Maggie XXX, Planning Court Lawyer (in exercise of powers delegated by the President of the Queen’s Bench Division pursuant to CPR Part 54.1A)

 

IT IS HEREBY ORDERED

 

1. The Claimant shall file Form N208PC (Planning Court Statutory Review Claim Form) in substitution for the N461PC Judicial Review Claim Form within 7 days of receipt of this Order.

 

2. The Claimant shall pay the balance of fee in the sum of £415 due in respect of this application for Statutory Review within 7 days of receipt of this Order (fee payable for Statutory Review being £569).

 

3. The Claimant shall show the Secretary of State for Levelling-Up, Housing and Communities as the 1st Defendant in place of The Planning Inspectorate; The London Borough of Hammersmith and Fulham as the 2nd Defendant; and oxo as the 3rd Defendants.

 

4. The Claimant shall serve a copy of Form N208PC and a copy of the bundle of documentation in support on the 1st Defendant at Government Legal Department, 102 Petty France, London, SW1H 9GL and on the 2nd Defendant at the address of the Council’s Legal Department.

 

5. The Claimant shall serve a copy of the Form N208PC on the 3rd Defendants, oxo, within 14 days of receipt of this order in substitution for any judicial review claim form served on them together with the documentation in support.

 

[SimonD]

17 minutes ago, oxo said:

maybe this will help -

 

Following consideration of the documents lodged by the Claimant Order by Maggie XXX, Planning Court Lawyer (in exercise of powers delegated by the President of the Queen’s Bench Division pursuant to CPR Part 54.1A)

 

IT IS HEREBY ORDERED

 

1. The Claimant shall file Form N208PC (Planning Court Statutory Review Claim Form) in substitution for the N461PC Judicial Review Claim Form within 7 days of receipt of this Order.

 

2. The Claimant shall pay the balance of fee in the sum of £415 due in respect of this application for Statutory Review within 7 days of receipt of this Order (fee payable for Statutory Review being £569).

 

3. The Claimant shall show the Secretary of State for Levelling-Up, Housing and Communities as the 1st Defendant in place of The Planning Inspectorate; The London Borough of Hammersmith and Fulham as the 2nd Defendant; and oxo as the 3rd Defendants.

 

4. The Claimant shall serve a copy of Form N208PC and a copy of the bundle of documentation in support on the 1st Defendant at Government Legal Department, 102 Petty France, London, SW1H 9GL and on the 2nd Defendant at the address of the Council’s Legal Department.

 

5. The Claimant shall serve a copy of the Form N208PC on the 3rd Defendants, oxo, within 14 days of receipt of this order in substitution for any judicial review claim form served on them together with the documentation in support.

 

 

The critical detail here is that you are an affected party to the order yet the court has failed to provide you with a statement of your right to make an application concerning the order. Therefore the court has not followed CPR. However, you may find that the court has decided to give the opportuity for the claimant to re submit a different form only for that to be dismissed as either out of time, or on consideration without merit - they're not beyond these shenanigans of getting claimants to jump through hoops and pay for the privilege.

 

I would in any case still be writing to the court to question the order and ask for it to be set aside.

[Adsibob]

2 hours ago, oxo said:

we are looking for many months delay here and if we eventually lose properly (i.e. appeal/application will be quashed completely) - all that we built now (according to the planner's view) - may be asked to be demolished. however insane this may sound as Adsibob says

I really don’t think this would happen. You are far more likely to strengthen your position if you get on and build. If you do nothing, there is less prejudice involved in overturning the permission and si that becomes an easier thing for the court to order.