The Court of Appeal in R (on the application of Gerber) v Wiltshire Council [2016] EWCA Civ 84; [2016] PLSCS 59 has reversed the High Court decision to quash a planning permission long after the standard period for bringing a claim.
The claim concerned a 22-hectare operating solar farm installation. It was filed almost a year outside the relevant period (under CPR 54). The council had complied with the statutory publicity requirements. The High Court judge nonetheless granted an extension of time for bringing the claim (under CPR 3.1(2)(a)). He held that the claimant had a legitimate expectation of having been notified of the application – aside from the statutory requirements – by virtue of the authority’s Statement of Community Involvement. He also identified failures to consult statutory consultees (English Heritage), to discharge the duty under Section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 or to properly to screen the application for EIA purposes. He declined to withhold relief due to the delay (under Section 31(6) of the Senior Courts Act 1981) on the basis that the normal approach should be to quash the grant of permission in the circumstances (applying Tata Steel UK Ltd v Newport City Council [2010] EWCA Civ 1626) and the technical breaches by the authority justified doing so.
The Court of Appeal allowed the council and the developer’s appeals on the basis that there had been no grounds for legitimate expectation on the facts. The claimant’s ignorance of the scheme and reliance on legal advice could not be a factor in allowing the delay in bringing proceedings. The court also rejected the approach to weighing the effects of the decision to grant relief under Section 31(6), holding that Tata Steel did not apply when applying Section 31(6). The significant delay in bringing the claim without good reason, the prejudice to the solar farm operator, the lack of real damage to the claimant’s own interests and the need for good administration would all have justified the exercise of the discretion to refuse to quash the permission. The importance of renewable energy development and the need for investor certainty were important considerations.
The judgment stresses the need to bring any claim promptly unless there are “very special reasons” and that “especial speed will be expected in the case of objectors who have been involved in the planning process throughout”. Despite the outcome, the case does underline the risks of breaches by planning authorities of EIA and heritage requirements and the scope for legitimate expectation of consultation to apply through Statements of Community Involvement.
Roy Pinnock is a partner in the planning and public law team at Dentons
