In R (on the application of U & Partners (East Anglia) Ltd) v Broads Authority [2011] EWHC 1824 (Admin); [2011] PLSCS 193, the claimant sought to quash a decision by the local planning authority to grant planning permission to the Environment Agency to construct flood defence walls on part of its land. Its principal ground was that the agency had failed to comply with the Town and Country Planning (Environmental Impact Assessment)(
The agency argued that the claimant had not applied for permission to proceed with a claim for judicial review “promptly” in accordance with CPR 54.5, and that it had, by that point, spent £130,000 on the works. The claimant had made its application around one week before the expiry of the three-month period.
However, the Court of Justice in Uniplex (UK) Ltd v NHS Business Services Authority C-406/08 [2010] PTSR 1377, a decision relating to the Public Contracts Regulations 2006, which were made to give effect in domestic law to Directive 89/665/EC (the Procurement Directive), held that the test of whether a challenge is made “promptly” was not compatible with the requirement for certainty in article 1(1) of that directive. And in R (on the application of Buglife – The Invertebrate Conservation Trust) v Medway Council and others [2011] EWHC 746 (Admin); [2011] 24 EG 108 (CS), a case concerning the EIA Directive, the court held that the Uniplex decision applied general and core principles of Community law that are applicable to all directives.
The judge in U & Partners, having held that the EIA Directive and the EIA Regulations had not been complied with, considered the question of delay. He concluded that the claim had not been brought promptly. However, following Uniplex, Community law does not permit a time limit within which proceedings to protect rights derived from that law must be brought that may depend on the exercise of judicial discretion. Uniplex was not limited to the Procurement Directive. Accordingly, he quashed the decision to grant planning permission.
It should be noted that the Collins J was unhappy with the effect of Uniplex and urged that serious consideration be given to amending CPR 54.5 to provide a six-week time limit for all judicial review challenges.
John Martin is a freelance writer
