At the heart of R (on the application of Asda Stores Ltd) v South Tyneside Borough Council [2010] EWHC 3285 (Admin) was a section 106 agreement that contained provisions restricting the extent to which the subject property could be used for the sale of food. The claimant attempted to compel the local planning authority (LPA) to enforce it against a rival supermarket operator, Morrisons, by means of a claim for judicial review. It was refused permission on the basis of delay. As is well known, CPR 54.5(1) requires that a claim form in which judicial review is sought must be filed: (a) promptly; and (b) in any event not later than three months after the grounds to make the claim first arose.
The claimant became aware of the LPA’s decision not to enforce the agreement on 21 June 2010, and the claim form was filed on 10 September 2010. Prior to this, the claimant did nothing to make Morrisons aware of its intentions. In the intervening period, Morrisons had taken a 25-year lease of the subject property and committed £6m in refurbishment and fitting out works. It had also started to recruit staff. The judge refused permission to proceed with the claim, stating that this was, in his judgment, a classic case in which permission to proceed to a substantive hearing should be refused on the ground of delay. The following points of principle can be extracted from his judgment.
(1) As a matter of law, an LPA may be compelled to enforce a section 106 agreement by means of proceedings for judicial review.
(2) The requirement to act promptly must be applied equally stringently where the decision impugned is of a negative kind.
(3) The requirements that the claim form be filed promptly and within three months must both be satisfied.
(4) The fact that the claim is strong does not dilute the requirement that it be made promptly.
(5) Particular emphasis is placed on the need to act promptly in planning cases and where the impugned decision affects third parties.
(6) Delay also has to be viewed in the light of the absence of a cogent explanation for why it occurred.
John Martin is a freelance writer
