Town and country planning – Judicial review – Planning permission for solar farm – Extension of time granted under CPR 54.5 for judicial review claim to challenge lawfulness of grant of planning permission – Whether judge erring in finding breach of legitimate expectation that respondent local resident would be informed by letter of planning application – Whether erring in finding reasonable grounds for delay in bringing claim – Appeal allowed
In June 2013, the first appellant local planning authority granted planning permission for a proposed solar farm to be run by the second appellants and comprising solar photovoltaic (PV) arrays and on just over 22ha of land at Broughton Gifford, Wiltshire. The respondent owned a Grade II* listed building, Gifford Hall, close to the proposed development site.
Before granting planning permission, the first appellants had posted notices of the planning application at prominent places in the vicinity of the development site in accordance with their obligations under article 13 of the Town and Country Planning (Development Management Procedure) Order 2010. Such notices were posted at the entrance to the lane leading to the respondent’s property but the respondent did not see them, nor did he see the notice of the application which was given in the local newspaper or on the first appellant’s website. The respondent first became aware of the development when construction works began in March 2014. He wrote to the first appellants to object on grounds relating to the impact of the development on the setting of Gifford Hall. They rejected his complaint and, in August 2014, he brought a claim for judicial review of the planning permission.
Permission to bring the claim was granted but issues were reserved as to whether it should be dismissed under either CPR 54.5 or section 31(6) of the Senior Courts Act 1981 on the grounds of delay. At the substantive hearing, the judge held that an extension of time should be granted for the claim since the first appellants had, by assurances given in their Statement of Community Involvement (SCI) setting out their published policy on consultation, created a legitimate expectation in the respondent that he would receive a letter of notification of the planning application as the owner of a neighbouring property.
The substantive claim was allowed on grounds relating to the first appellants’ failure properly to consider the impact of the development on the setting of Gifford Hall as a listed building, or to consult with English Heritage on that matter, and for errors in the screening process which had led the first appellants to conclude that no environmental impact assessment was required for the development under the Town and Country Planning (Environmental Impact Assessment) Regulations 2011: see [2015] EWHC 524 (Admin); [2015] PLSCS 78. The appellants appealed solely in relation to the issues of legitimate expectation and delay.
Held: The appeal was allowed.
(1) In order to give rise to a legitimate expectation, there had to be a promise by a public authority which was clear, unambiguous and devoid of relevant qualification: R v Inland Revenue Commissioners, ex parte MFK Underwriting Agencies Ltd [1990] 1 WLR 1545 and R (on the application of Davies) v Revenue & Customs Commissioners [2011] UKSC 47; [2011] 1 WLR 2625 applied. The judge had erred in finding that the first appellants’ SCI, on its proper interpretation, contained an unambiguous promise to consult the respondent directly about the application for planning permission. The relevant policy was expressly directed to consultation of the owners of properties adjoining sites for proposed development. Gifford Hall did not adjoin the site and so the respondent could not bring himself within the scope of the policy. That policy set out the definitive statement of what the first appellants promised to do and was not qualified by poorly drafted statements in the appendices to the SCI. It followed that there was no breach of legitimate expectation by the first appellants.
(2) On any view, the respondent required an order under CPR 3.1(2)(a) to extend time for bringing his judicial review claim. The judge’s error regarding legitimate expectation had affected his exercise of discretion to extend time to bring the claim. Contrary to the judge’s finding, the respondent had no reasonable explanation for the lengthy delay between the grant of planning permission in June 2013 and the date in March 2014 when he first registered an objection to the development by contacting the first appellants.
An objector to a grant of planning permission needed to take speedy action to challenge such grant in the courts. The courts’ approach in relation to an application to extend time for judicial review had to strike a fair balance between the interests of the objector, the interests of the developer and the public interest. In light of the risk of detrimental reliance by a developer on the grant of permission and possible prejudice to the public interest, it was incumbent on an objector to proceed promptly so as to minimise the risk of prejudice to those other interests: Finn-Kelcey v Milton Keynes Council [2008] EWCA Civ 1067; [2009] Env LR 17; [2008] PLSCS 267 applied.
In the absence of any legitimate expectation, the respondent was in the same position as any member of the public regarding notification of applications for planning permission in the locality. The notification rules in the 2010 Order formed part of the legal framework designed to strike a fair balance between the competing interests of objectors and developers. Where, as here, the notification rules had been complied with, potential objectors among the general public would have been given what was normally to be regarded as a fair opportunity to learn about and object to a proposed development before planning permission was granted. Landowners were expected to be reasonably observant in keeping an eye on developments in their locality that might affect them. Where a fair opportunity had been given to objectors to learn in good time about a proposed development in their locality via compliance with the notification rules, then, in view of the possible harm to other competing interests, it was reasonable to expect them to move with speed to bring any challenge to the lawfulness of the grant of planning permission for that development in the courts. Accordingly, where proper notice of an application for planning permission had been given pursuant to the 2010 Order, it was not appropriate to extend time for bringing a legal challenge to the grant of such permission simply because an objector did not notice what was happening. Prompt legal action after the grant of a planning permission would be required in all cases, unless very special reasons could be shown of a kind which were wholly absent from the instant case.
(3) The judge had also erred in finding that the respondent had a reasonable explanation, based on his reliance on legal advice, for the later period of delay between March 2014 and his launching legal proceedings in August 2014. The fact that a person acted, or omitted to act, on the basis of legal advice did not make him less responsible in law for his actions. While legal advice helped him to decide what to do, in most contexts it was still his decision and his actions or omissions that determined how his rights and liabilities in relation to another person should be adjusted. This approach was underwritten by important practical considerations of particular force in the planning context, namely that: (i) legal advice was protected by legal professional privilege and evidence about its precise content, sufficient to allow a court to assess what it was and the extent to which the recipient in fact acted upon it, would not usually be available; (ii) where a legal requirement to take action within a particular time limit was in issue, in a context where, as here, other private parties were proposing to act once given permission to do so by a public authority, it would undermine the protection which that requirement afforded for such other parties if the recipient of the advice was entitled to refer to private exchanges with his lawyers of which the other parties knew nothing; and (iii) the interests of the person receiving the advice were adequately protected by the possibility of a right of action against his lawyer if the legal advice was wrong and, by acting on it, he lost some right or advantage as against other persons. Other than in exceptional circumstances where other factors were also in play, it would therefore be wrong in principle for the court to exercise its discretion to extend time to bring judicial review proceedings in the planning context by reference to legal advice which an objector might have received. It followed that the extension of time granted to the respondent under CPR 54.5 should be set aside, as, in consequence, should the judge’s order quashing the planning permission: Melton v Uttlesford District Council [2009] EWHC 2845 (Admin) considered.
(4) Furthermore, the judge had erred in his exercise of the discretion as to remedy under section 31 of the Senior Courts Act 1981. The court had a discretion under section 31 to refuse relief where the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or be detrimental to good administration. It was not possible in the instant case to separate out the exercise of discretion as to remedy under section 31(6) from consideration of the factors relevant to the exercise of discretion whether to extend time under CPR 54.5. The longer the delay after the grant of planning permission, the greater the risk and extent of hardship and prejudice to the second appellants if the grant was set aside. The weaker the respondent’s justification for exposing them to such hardship and prejudice by his delay, the more weight should be given to the prejudice to their interests as compared with the prejudice to his. Accordingly, had it been necessary to do so, it would also have been appropriate to exercise the discretion under section 31(6) in favour of upholding the validity of the planning permission: R v Dairy Produce Quota Tribunal, ex parte Caswell [1990] 2 AC 738 applied.
David Forsdick QC and Jonathan Wills (instructed by the legal department of Wiltshire Council) appeared for the first appellants; Richard Drabble QC and Jonathan Wills (instructed by Watson Farley & Williams LLP) appeared for the second appellants; Morag Ellis QC and Jenny Wigley (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the respondent.
Sally Dobson, barrister
Click here to read the transcript of R (on the application of Gerber) v Wiltshire Council
