In R (on the application of Pampisford Estate Farms Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 131 (Admin), it was contended that a recent decision of the European Court of Justice (ECJ) may have cast doubt on the validity of the requirement in CPR 54.5(1) for a claim for judicial review to be filed “promptly” and, in any event, not later than three months after the grounds to make the claim first arose.
In that case, a developer had appealed to the secretary of state against the failure of the local planning authority to determine its application for planning permission for a wind farm. The claimant sought judicial review. One of its two main grounds of challenge was that the secretary of state had erred in ruling that the developer’s environmental statement was sufficient to comply with the Town and Country Planning (Environmental Impact Assessment)(
At a pre-inquiry meeting held on 21 October 2009, the claimant argued that the appeal process should not have been started without a full environmental statement. The inspector declined to accept the argument and the claimant stated that it would apply for its costs at the inquiry. That inquiry was estimated to take 17 days and was due to open at the beginning of February 2010. Several parties were involved. However, the claimant did not send its pre-action protocol letter to the Planning Inspectorate until 23 December 2009 and did not file its claim for judicial review until 14 January 2010.
The judge was referred to the recent decision of the ECJ in Uniplex (UK) Ltd v NHS Business Services Authority C-406/08, where it was held, in the context of procurement rules, that the test of whether a challenge is made “promptly” was not compatible with the requirement for certainty in article 1(1) of Directive 89/665/EEC. He held, however, that the decision in Uniplex could not, as a matter of law, by itself overturn the statutory basis of CPR 54.5. Moreover, that case was not concerned with a situation in which a lack of promptness could have a significant adverse effect on numerous other parties.
The judge concluded that the delay in taking the judicial review point until 23 December 2009 was a failure to act promptly. Promptness has to be looked at by reference to all the circumstances of the case, which included the fact that an inquiry, for which several parties had been preparing for months, was about to start.
John Martin is a freelance writer
