Judicial review – Permission – Town and country planning – Appellant applying for permission to bring judicial review proceedings challenging grant of planning permission – Whether permission properly refused on merits – Whether application made in time – Appeal dismissed
On 26 January 2011, the first respondent council granted planning permission to the second and third respondents for a mixed development including the construction of a food store and the restoration of a former working men’s institute. The appellant, a local resident, applied for permission to bring judicial review proceedings challenging the grant of permission. He lodged his application on 26 April 2011, the day after a bank holiday. By that time, work had started on the development. The store subsequently opened for business in October 2011, employing 245 people. The appellant’s grounds of challenge to the planning permission concerned alleged errors and inadequacy of reasons in a screening opinion issued by the first respondent, to the effect that no environmental impact assessment (EIA) was required under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, and additional claims of bias and irrationality.
Permission for the judicial review claim was refused both on the merits and on the ground that the application had not been brought promptly or within three months from the time when the grounds for it first arose, as required by CPR 54.5(1). The appellant appealed.
Held: The appeal was dismissed.
(1) Although the screening opinion could and should have been more fully reasoned, there would have been no serious doubt about the first respondents’ reasons among those interested. The development was well below the indicative criteria for an EIA development, as suggested in the relevant government circular, and any doubt as to the first respondents’ reasoning would have been dispelled by the very full report that had been before their planning committee. There was nothing in that report to cast doubt on the correctness of the decision that an EIA was not necessary. Accordingly, the appellant’s first ground of challenge failed on the merits. Nor was there any merit in his allegations of bias or irrationality. It followed that the refusal of permission for judicial review should be upheld.
(2) As to timing, the judge had erred in finding that the application had not been brought within three months of the grant of planning permission. That period started with the day following the grant of permission, and, in any event, the bank holiday should have been disregarded: Kaur v S Russell & Sons Ltd [1973] QB 336 applied.
Per curiam: Although it was not necessary to decide, in view of the court’s decision on the merits, an issue might arise in future as to the applicability of the requirement for promptness in cases where there was a ground of challenge, such as the appellant’s EIA challenge, that turned on a requirement derived from a European directive. It had been held that an undefined test, analogous to that of promptness, offended against the European principles of certainty and effectiveness: Uniplex (UK) Ltd v NHS Business Services Authority Case C-406/08 [2010] PTSR 1377, R (on the application of Buglife) v Medway Council [2011] EWHC 746 (Admin); [2011] Env LR 27; [2011] EG 108 (CS) and R (on the application of U & Partners (East Anglia) Ltd) v Broads Authority [2011] EWHC 1824 (Admin); [2011] JPL 1583; [2011] PLSCS 193 considered. Per Sir Richard Buxton: The court in Uniplex had not been exposed to the implications in the national legal order of the extension of its ruling to all types of administrative acts. In another case, greater emphasis on the effect on applicants for planning permission as well on the effect on objectors, and appreciation that the requirement of promptitude was judicially controlled and only applied after judicial consideration of the circumstances of the case, might lead to a different view. Such an analysis of the actual application of the provision, in the context of the national legal order, was not excluded by Community law. Per Carnwath LJ: Even in relation to EIA grounds, the Uniplex principle might not limit the court’s discretion to refuse relief on the grounds of “undue delay” under section 31(6) of the Senior Courts Act 1981: R (on the application of Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23; [2002] 1 WLR 1593; [2002] 2 PLR 90 considered.
Richard Harwood (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Ian Albutt (instructed by the legal department of Newport City Council) appeared for the first respondents; Michael Fordham QC and James Maurici (instructed by Gordons LLP) appeared for the second respondent; the third respondent did not appear and was not represented.
Sally Dobson, barrister
