Judicial review claims have two essential requirements. Martin Edwards and John Martin identify what these are
| ? The claimant must have a “sufficient interest in the matter” ? The application for permission must be made “promptly” |
The requirement for locus standi and the need to act promptly in a claim for judicial review featured prominently in Residents Against Waste Site Ltd v Lancashire County Council [2007] EWHC 2558 (Admin).
Lancashire County Council (LCC) granted planning permission to itself for a large waste facility that would divert municipal waste from landfill. The proposal gave rise to considerable local opposition. The resolution to grant was passed on 1 November 2006, with planning permission being issued on 22 November 2006.
Residents Against Waste Site Ltd (RAWS), a company limited by guarantee, was incorporated on 14 February 2007 to represent the interests of the objectors. Its officers and members are local residents and borough councillors who had previously acted together in the same respect through an unincorporated association with a similar name. (The prospect of such a development on the application site was not new.)
Arguments and rejections
A pre-action protocol letter was sent to LCC on 31 January 2007. On 20 February, RAWS served its claim for judicial review on LCC and its contractor that is, two days short of the expiry of three months from the grant of planning permission. (Part 54 of the Civil Procedure Rules stipulates that the application for permission to proceed must be made “promptly” and “in any event not later than three months from the date when the grounds for the application first arose”.) The two substantive grounds of challenge that were pursued need not concern us.
Between 22 November 2006 and 31 January 2007, LCC and its contractor between them incurred costs of almost £2.8m with regard to the development. It was generally recognised that, although both were aware of the risk of a legal challenge to the grant of planning permission, the expenditure was unsurprising given the purpose, nature and scale of the development.
In the “rolled-up” hearing of the application for permission to proceed and the substantive hearing, LCC contended that RAWS had: (i) no standing and (ii) failed to act promptly.
On the standing issue, counsel for LCC argued that RAWS had not been incorporated until shortly before the claim was issued, and could not therefore have been an interested party during the course of the application for planning permission. Furthermore, the sole apparent reason for its incorporation was to limit the objectors’ exposure to costs. Finally, the standing requirements of a challenge of this kind should equate with those for a challenge under section 288 of the Town and Country Planning Act 1990, which uses the “persons aggrieved” formula.
Irwin J rejected these arguments, holding that RAWS had the necessary standing. Earlier authorities made it clear that a company formed by residents who object to the grant of a planning permission had standing to challenge that permission. The question of costs was a discrete one, and in this case, LCC had accepted the offer of security for costs made by RAWS.
The “persons aggrieved” test was formulated to afford a remedy to persons whose private interests were affected. That was a different situation from the instance of a public wrong such as an apparent misuse of public power.
On the issue of promptness, counsel for LCC contended that the claim had not been made promptly because of the earlier resolution to grant planning permission. The pre-action protocol letter could have been sent before planning permission was granted and at a time when LCC still had power to change its resolution. Finally, the delay until 20 February 2007 in making the claim prejudiced LCC.
The judge also rejected these arguments. He concluded, on the evidence, that LCC had anticipated the claim and had followed the same timetable that it would have done had there been a pre-action protocol letter before the grant of planning permission.Moreover, LCC and its contractor had not halted their contract in response to the actual issue of proceedings, and there was no evidence to suggest that they would have done so had the proceedings been issued three or four weeks earlier.
Double reminder
The decision serves as a reminder that, in circumstances such as these, the court will pierce the veil of incorporation, where necessary.
It is also a reminder that promptness will not be considered in the abstract. The practical consequences of a lack of promptness will be taken into account.
Martin Edwards is a specialist planning barrister in 39 Essex Street Chambers and John Martin is a solicitor and director of property law research at Pinsent Masons