Carter Commercial Developments Ltd v Bedford Borough Council and another

Claimant developer entering into option agreement with second defendant – Clause providing for extension of termination date – Claimant seeking to exercise option and issuing notice – Second defendant challenging validity of notice – Claimant issuing proceedings against first defendant council under Part 8 of CPR – Council and second defendant seeking order – Abuse of process – Claim struck out The claimant developer sought to acquire and develop a site comprising three parcels of land, one of which was owned by the second defendant. In July 1998 the second defendant granted the claimant an option to purchase the land (the agreement). In September 1999 the claimant made two outline applications for planning permission to Bedford Borough Council. In October 1999 the council notified the claimant, under Article 3 of the Town and Country Planning (General Development Procedure) Order 1995, that they required it to submit certain details before the application could be determined. The claimant failed to supply the relevant information. In December 1999 the second defendant and the claimant entered into a supplementary option agreement, clause 2 of which provided, inter alia, that: (i) the option was to be exercised by the “termination date”, a date that was extended, by agreement, to 21 July 2000; and (ii) the date could be extended if certain specified events were pending (for example a planning inquiry or a decision on a planning appeal). However, 22 April 2001 was given as the final deadline. In July 2000, under section 78(2) of the Town and Country Planning Act 1990, the claimant appealed to the Secretary of State for the Environment, Transport and the Regions against the council’s failure to determine its planning application. The Secretary of State dismissed the appeal because it was made outside the time-frame under the 1995 Order, and because no extension had been agreed with the council. During spring 2001, the claimant sought to exercise its option to purchase the land and duly served a notice upon the second defendant. The second defendant challenged the validity of the notice because it was served outside the requisite time-frame. To enable the claimant to meet the provisions of clause 2 of the supplementary agreement, it had to demonstrate that it had commenced a valid planning appeal prior to 21 July 2000, and that the appeal was in operation. The claimant issued a claim against the council, under Part 8 of the CPR, seeking, inter alia, a declaration that the council had agreed, in writing, to an extension of the period for determining the planning application. The second defendant applied to be joined in the proceedings. Both the council and the second defendant sought, inter alia, an order striking out the claim, on the ground that the proceedings were an abuse of process. Held: The claim was struck out. 1. The issues were those of public law and should have been dealt with. By bringing the Part 8 claim, the claimant was clearly seeking to circumvent the time limits of Part 54. 2. The claimant stated that it had had no intention of pursuing its appeal to the Secretary of State. Its sole motive was to establish that the planning appeal was current at the date upon which it served its option notice. Therefore, it had no real claim against the council; that part of the action was merely a strategic move against the second defendant. The council, as local planning authority, should not have been brought into such proceedings. 3. The claim was to be struck out under r 3.4(2)(b) of the CPR as an abuse of process: Clark v University of Lincolnshire and Humberside [2000] 3 All ER 752 considered. William Hicks QC (instructed by Denton Wilde Sapte) appeared for the claimant; Simon Bird (instructed by the solicitor to Bedford Borough Council) appeared for the first defendants; Joseph Harper QC (instructed by Eversheds, of Nottingham) appeared for the second defendant. Sarah Addenbrooke, barrister