Summary judgment is a remedy available under section 288 of the Town and Country Planning Act 1990
CPR 24.2 provides that the court may give summary judgment against a claimant on the whole of the claim, or on a particular issue, if it considers that the claimant has no real prospect of succeeding on the claim or issue, and there is no other compelling reason why the case or issue should be disposed of at trial. CPR 24.3 makes it clear that summary judgment is available in any type of proceedings, and contains no provision that would exclude a challenge under section 288 of the Town and Country Planning Act 1990.
In Mackman v Secretary of State for Communities and Local Government [2014] EWHC 4729 (Admin), the claimant had applied under section 288 to quash a decision of the secretary of state granting planning permission to a developer for 73 residential units. The first ground of challenge was that the secretary of state had erred in accepting a negative screening opinion adopted by the local planning authority. The second was that he had misinterpreted policy and guidance. The third was that he had taken an earlier appeal decision into account to too great an extent. Before the case had been listed for a substantive hearing, the developer issued an application for summary judgment.
CPR 24.2 provides that the court may give summary judgment against a claimant on the whole of the claim, or on a particular issue, if it considers that the claimant has no real prospect of succeeding on the claim or issue, and there is no other compelling reason why the case or issue should be disposed of at trial. CPR 24.3 makes it clear that summary judgment is available in any type of proceedings, and contains no provision that would exclude a challenge under section 288 of the Town and Country Planning Act 1990.
In Mackman v Secretary of State for Communities and Local Government [2014] EWHC 4729 (Admin), the claimant had applied under section 288 to quash a decision of the secretary of state granting planning permission to a developer for 73 residential units. The first ground of challenge was that the secretary of state had erred in accepting a negative screening opinion adopted by the local planning authority. The second was that he had misinterpreted policy and guidance. The third was that he had taken an earlier appeal decision into account to too great an extent. Before the case had been listed for a substantive hearing, the developer issued an application for summary judgment.
The court, while recognising that at a substantive hearing the claim might well fail on all three grounds, dismissed the developer’s application. The judge summarised the principles for obtaining summary judgment in the following way.
(1) The applicant has to establish that the respondent has no real prospect of success. (2) If the evidence in support of the application is credible, the respondent must establish that he has a real prospect of success. (3) The criterion that the judge has to apply is not one of probability; it is absence of reality. (4) If a short point of law is before the court, the court should decide it. (5) This is provided the court has all the necessary evidence for a proper determination, and it is satisfied that the parties have had an adequate opportunity to address the point in argument.
In the present case, the judge concluded that the claimant’s case did not, on any of the three grounds, have an absence of reality. However, he expressed quite firmly the view that – given the amount of court time involved and the costs generated – it would have been preferable for the developer to have applied instead for an expedited substantive hearing.
John Martin
