In a judgment handed down yesterday, the High Court (Swift J) comprehensively dismissed a fraud claim brought by a Parish Council against an international congregation of Catholic nuns.
In 2010, Chiltern DC had granted planning permission to the Holy Cross Sisters for the redevelopment of their former school site known as the Grange for a mixed-use scheme including 198 dwellings in Chalfont St. Peter.
Chalfont St. Peter Parish Council had been bitterly opposed to the grant of planning permission which it saw as contrary to its aspirations to move a Church of England school to the Grange site. Between 2011 and 2014 the Parish Council had vigorously pursued a judicial review claim and related Local Plan challenge, seeking to quash the planning permission and relevant policy of the Local Plan. The combined claim and challenge were dismissed both in the High Court and the Court of Appeal ( EWCA Civ 1393).
Not content with the outcome of that litigation, the Parish Council issued a fresh claim against the Holy Cross Sisters in 2016. This claim was brought in unlawful means conspiracy and the tort of unlawful interference and was issued just within the six-year limitation period. In essence, the claim alleged that members of the Holy Cross Sisters had conspired to deceive the Planning Committee with regard to the size of the playing field land at the Grange with the intention of causing damage to the Parish Council by obtaining planning permission and defeating its aspirations. The Parish Council initially claimed several million pounds of compensatory damages based primarily on a claimed loss of opportunity of pursuing the school relocation. This head of loss was eventually abandoned by the Parish Council in favour of an unprecedented claim for £5 million exemplary damages, inviting the Court to record that tort doesn't pay.
Over the course of two weeks in February this year, the High Court heard factual and expert evidence on the claim (an application to strike out and/or seek summary judgment on the claim having been dismissed in 2017), including lengthy tested evidence from Parish Councillors and certain of the Holy Cross Sisters.
In a robust judgment, Swift J completely exonerated the Holy Cross Sisters and found that none of the essential elements of either claim had been made out. In particular, there was no conspiracy to use unlawful means as alleged; even if a conspiracy as alleged had existed, the Parish Council had failed to establish unlawful means either in the form of the tort of deceit or in the form of the offence under s.2 of the Fraud Act 2006; the intent necessary for the unlawful means conspiracy had not been established; in any event causation had not been made out; and the Parish Council suffered no loss by reason of the decision to grant planning permission.
The judgment will be of interest to planning lawyers on the events surrounding the Planning Committee meeting. First, the Officer's Report (recommending that planning permission be granted) was sensibly framed in the alternative, grappling with the contentious issue which had arisen between Sport England, the Parish Council, and the applicant as to the existence of historic playing pitches and playing field land to be lost by redevelopment, but arguing that in any event there was an oversupply of playing pitches in the area. This freestanding point defeated the claim on causation (paras. 104 – 106). Secondly, the Court was required to scrutinise carefully the way in which the applicant's consultants obtained instructions and put forward representations at short notice on behalf of their client at Planning Committee (paras. 53-59). Those consultants were not named as conspirators and their conduct was ultimately not in issue, which was testament to their careful approach to the application.
Philip Coppel QC, Mark Lowe QC, and Asitha Ranatunga represented the Holy Cross Sisters Trustees Incorporated, instructed by Farrer & Co.