Redress for abuse of the planning system

01 Jan 2018

Commercial and Regulatory, Planning and Environment, Property, Public Law and Judicial Review

Master Davison refuses to strike out claim alleging planning fraud by religious charity

Chalfont St Peter Parish Council v Holy Cross Sisters Trustees Incorporated

Queen’s Bench Division, 10 April 2017

This claim concerns the grant of planning permission by Chiltern District Council (“CDC”) in December 2010 for a mixed-use development on the site of the former Holy Cross Convent School in Chalfont St Peter, Buckinghamshire. The Holy Cross later sold the site with the benefit of the planning permission for in excess of £30m.

In August 2016, nearly 6 years after CDC resolved to grant the planning permission, the Parish Council issued a claim in the Queen’s Bench Division alleging that the Holy Cross had fraudulently misled CDC as to the extent of the former playing fields at the school and thereby induced CDC to grant the planning permission. The Parish Council alleges that the Holy Cross thereby intended to injure the Parish Council, by knocking out its rival proposal for the development of the site.These allegations are strenuously denied by the Holy Cross.

The present claim followed protracted litigation in the Administrative Court and Court of Appeal, in which the Parish Council sought to set aside the planning permission, and which culminated in defeat for the Parish Council: see R(Chalfont St Peter Parish Council) v Chiltern District Council & Holy Cross Sisters Trustees Inc [2014] EWCA Civ 1393.

The Holy Cross applied to strike out the claim, alternatively for summary judgment.

The main issue was whether it was an abuse of process for the Parish Council to allege fraud at this point in time. It had not alleged fraud within the protracted judicial review proceedings. As Master Davison put it:

“Certainly, the ordinary observer would think that it is unsatisfactory that that allegation should be raised only now – 6 years after the events and after multiple hearings in the High Court and Court of Appeal about the same subject-matter.”

However, the Master concluded that it would not be right to strike out the claim. Essentially, this was because:

“It is a cardinal feature of judicial review proceedings that the court will not ordinarily embark upon a re-hearing of the underlying facts. Firstly, that would be to usurp the function which Parliament has vested in the planning authority. Secondly, judicial review is a procedure fundamentally unsuited to finding facts – particularly heavily contested and contentious facts.”

Therefore, he was not persuaded that the Parish Council should have alleged fraud within the earlier judicial review litigation.

The Master also stated that there was force in the submission that, if the claim was made out, then the true abuse of process here was the abuse of the planning system, which if the claim were struck out would go unpunished and un-redressed.

As to the summary judgment application, the Holy Cross was in the Master’s view unable to land a “knock-down blow” to the Parish Council’s case.

The full text of the judgment can be found here.

Matt Hutchings QC, instructed by Simons Muirhead & Burton LLP, appeared for the Parish Council.

Mark Lowe QC and Asitha Ranathunga, instructed by Farrer & Co LLP, appeared for the Holy Cross. Mark Lowe QC and Asitha Ranathunga also appeared for the Holy Cross in the prior judicial review proceedings.

For coverage of the judgment in the press, see the Law Society Gazette website, Planning Magazine and The Times.