EVIDENCE IN PART 8 APPLICATIONS: APPLY IN ADVANCE OR YOU WILL PROBABLY NOT BE ALLOWED TO CALL ANY
It is unusual to call evidence in Part 8 applications. This is made clear in the judgment of HH Walden-Smith in Wokingham Borough Council -v- Scott  EWHC 294 (QB). A party failed to make an application to call oral evidence and was refused permission to call, or cross-examine, witnesses at the hearing.
- The claimant had issued Part 8 proceedings seeking an injunction in support of planning regulations.
- The court had given the parties permission to make an application to call oral evidence.
- The defendants did not make an application to call oral evidence.
- The defendants’ application to call witness evidence at the hearing of the injunction application was refused.
The claimant council was seeking an injunction to enforce compliance with planning requirements.
This case was listed for 2 days, it in fact took 3. The reason for this is that numerous arguments were raised as to why the hearing of the injunction application could not proceed. It was not until I had been able to consider all the arguments, give further time to the unrepresented Defendants to consider papers, and give my various rulings, that the application could be considered.
The first application was made by Mr Stemp on the basis that witnesses were required to give oral evidence in order that they could be subjected to cross examination. In particular he wished to cross examine Laura Callan, a principal planning officer in Development Management at Wokingham BC, and Clare Lawrence, head of Development Management and Regulatory Services at Wokingham BC, with respect to an area of dispute as to the enforcement notice and the withdrawal of the appeal against it. This case had come before Edis J. on 15 July 2016 and, recognising this was an area of dispute, he had provided that if there were to be any applications for disclosure or for the calling of oral evidence for the purpose of cross-examination, there needed to be an application served by 15 August 2016. There was an application for disclosure, but no application for witnesses to be called to be cross-examined. Wokingham BC did not agree to Mr and Mrs Scott being given permission to cross-examine Ms Callan and Ms Lawrence. While those two witnesses were present in Court, they were not expecting to be cross examined.
I gave a ruling that the Defendants did not have permission to cross-examine either Ms Callan or Mrs Lawrence. The order of Edis J. did not provide that there would be cross-examination, he merely gave the Defendants permission to make an application by a certain date. No explanation was provided by the Defendants as to why the application had not been made by the date specified or even before the hearing. I had been surprised to see from the skeleton argument, filed by Mr Stemp on behalf of the First Defendant on the day of the hearing, that an assumption had been made that cross examination would be permitted. This is a part 8 claim and it would be unusual for live evidence to be called. That is, no doubt, why Edis J. gave permission for an application to be made as he was alive to there being a factual dispute with respect to the withdrawal of the appeal against the enforcement notice. However, it was a matter for the Defendants to decide whether they wanted to make an application for permission and for the court to then determine, having heard arguments from both sides, as to whether permission ought to be given – the Claimant then having the opportunity to prepare for such a hearing. It would be unfair on the Claimant’s witnesses to be cross-examined when they had not had the opportunity to prepare themselves for cross-examination, particularly by familiarising themselves with the communications between Wokingham BC and Mr Scott. Mr Stemp contended that it was necessary to hear oral evidence in order to be able to reach a resolution of the factual dispute as the First Defendant was reliant upon his interpretation of the circumstances of the withdrawal of the appeal and discussions with respect to the issuing of a certificate of lawful existing use (“CLEUD”) to make out his case in law (relying in particular on Staffordshire County Council v Challinor  1 P & CR10). I did not agree with his contentions and did not consider that there was any need for oral evidence and cross examination. It was perfectly appropriate in this injunction application to reach determinations on the basis of the written evidence and documentation before the Court. I therefore did not allow an adjournment of the injunction hearing on the basis of the First and Second Defendants’ application.
The Third to Ninth Defendants were all unrepresented and, as set out above, they did not all attend the hearing. The bundle of papers before the court had not all been seen by those Defendants who were without representation. It appears that this had happened because the solicitors acting for the First and Second Defendant had placed herself on the record for the purpose of submitting the acknowledgment of service by each of the other Defendants and filing their statements. This she had carried out pro bono but unfortunately did not notify the Claimant or the court that she was no longer acting for all the Defendants. The consequence of this was that the Claimant had served all the papers upon the solicitors, who were purporting to be on the record, and not the individual occupiers. The Claimant cannot be blamed in any way for that, the fault lies in the failure to notify the court and the Claimant that the Defendants (other than the First and Second Defendants) were acting in person. I gave the individual Defendants time to consider the bundles in order that they had an opportunity to see that which what they had not already seen. Two of those Defendants, Mr Chamberlain and Mr Parry, sought an adjournment of the hearing in order that they could obtain legal advice as they were contending that their use of the land was “ancillary use” to the historically permitted use of horticulture.
I did not allow this application for an adjournment. I did not accept that the Fifth Defendant, Mr Chamberlain trading as Quality Garden Buildings, and the Ninth Defendant, Mr Parry trading as Garden Trends, had not previously known that there was an argument with respect to their businesses being ancillary to the permitted use of horticulture. This was clearly something that had always been an issue and the Fifth and Ninth Defendants, together with the other unrepresented Defendants, had had plenty of time to instruct legal representation if they had wanted it both with respect to the application for an injunction and with respect to the planning matters. I was satisfied that the issues the unrepresented Defendants were primarily concerned with were either being dealt with in the course of submissions by Counsel on behalf of the First and Second Defendants and, insofar as these differed or the Defendants were potentially in conflict, the Defendants were themselves able to deal with the issues, such as the impact any injunction would have upon their own business. Mr Chamberlain expressed concern at the end of the hearing that I might have thought that he and Mr Parry were deliberately endeavouring to delay the case. I assured them that I did not consider that to be the case and understood that they, and the other unrepresented Defendants, were just anxiously endeavouring to protect their own business interests.
The issue as to the use of the land had been dealt within the course of the planning process. While at earlier hearings the individual Defendants had argued that the application for an injunction should be adjourned until after the planning process had been concluded, the planning process had taken some considerable time and had now concluded. The argument that it was necessary to adjourn in order to deal with the planning issues first had therefore gone. I made it clear throughout that this application was not an opportunity for the Defendants to re-argue the planning issues and that it is not for this Court to delve into these matters.