CPR 54.5(1) provides that a claim for judicial review must be brought promptly, and in any event not later than three months after the grounds to make the claim first arose. The requirement for promptness is a separate and independent one, and there have been several occasions when the court has concluded, on the facts of the particular case, that this requirement has not been satisfied even though the claim was made within the three-month period.
However, in Uniplex (United Kingdom) Ltd NHS Business Services Authority Case C-406/08; [2010] PTSR 1377 the Court of Justice of the European Union held – in the field of public procurement – that an undefined test analogous to that of promptness offends the European principles of certainty and effectiveness. In two subsequent cases in the High Court, this was followed in relation to challenges to the grant of planning permission on EIA grounds. This left some uncertainty as to the status of the requirement for promptness where the grant of planning permission is challenged on domestic law grounds. Prior to all of this, the Court of Appeal had confirmed the importance of the promptness requirement in relation to such domestic law challenges in Finn-Kelcey v Milton Keynes Borough Council [2008] EWCA Civ 1067; [2008] 41 EG 157. (There the claim was made a few days before the expiry of the three-month period.)
Now, in R (on the application of Berky) v Newport City Council [2012] EWCA Civ 378; [2012] PLSCS 79 the Court of Appeal – without having to decide the point – has had an opportunity to state its further view of the requirement of promptness in cases where the ground of challenge does not turn on a requirement derived from a European directive. (Permission to proceed was refused on the substantive merit.) All three appeal judges were of the opinion that the authority of Finn-Kelcey was undiminished in the domestic context. If the Uniplex principle were to be extended throughout the planning field, that would give rise to manifest inconveniences both forensic and practical.
Clearly, the Court of Appeal once more had in mind the effects of such a challenge on applicants for planning permission and related third parties. Inevitably, once a planning permission is granted a developer will wish to implement it without delay given the time limits on its validity.
John Martin is a freelance writer
