Objector to outline planning consent seeking leave to apply for judicial review after relevant committee resolution but prior to actual grant — Council relying upon statutory three-month time limit — Whether time running from resolution or from grant — Objector’s appeal allowed — House of Lords affirming jurisdiction to hear appeal on leave matter — Appeal allowed
In September 1999, the respondent council’s planning and traffic management committee resolved, subject to certain conditions, to authorise the council’s planning director to grant outline planning permission for a mixed-use development on a 32-acre site known as Imperial Wharf, London SW6. So far as material, the conditions required: (i) due notification that the application would not be called in by the Secretary of State; and (ii) the conclusion, with the developer, of a satisfactory agreement pursuant to section 106 of the Town and Country Planning Act 1990.
In April 2000, when the resolution conditions were as yet unfulfilled, certain local residents sought leave to apply for judicial review of the committee resolution, on the ground that the environmental impact assessment furnished by the developer was deficient in certain important respects. In May 2000, the committee resolution became unconditional, and planning permission was granted to the developer on the same day.
Leave for the residents’ application was refused both at first instance and by the Court of Appeal, primarily on the ground that the application, being directed at the resolution as distinct from the grant, had been made outside the three-month time limit imposed by Ord 53 r (4)(1) of the Rules of the Supreme Court*. The residents appealed to the House of Lords, where the council argued that the residents were disabled from challenging the grant of permission because: (i) their original application was directed solely at the resolution (the narrow ground); and/or (ii) the three-month time limit could only run from the date of the resolution, that being, as held in the courts below, the date “when grounds for the application first arose” within the meaning of the order (the wider ground).
Held: The appeal was allowed†.
The narrow ground could not stand. In public law, the emphasis should be on substance rather than form. To dismiss the appeal on the narrow ground would be unjust. Any procedural difficulty could be cured by allowing an amendment, put forward by the residents, directed to the grant of May 2000.
As regards the wider ground, the relevant date, for the purpose of Ord 53, could not be the date of the resolution, as the decision of the committee, being conditional, was inchoate. That would not, of itself, have prevented the residents from challenging the resolution had they acted in time. However, had they done so, they would not necessarily have lost the opportunity to wait until the planning permission was granted and then challenge the grant. Moreover, contrary to what was stated in R v Secretary of State for Trade and Industry, ex parte Greenpeace (No 1) [1998] Env LR 415, there was no place for a rule, discretionary or otherwise, to the effect that the making of one objectionable administrative decision should start the clock running as regards later decisions on the same subject matter. In the case of planning in particular, there could be a confusing number of different starting points. Certainty was best achieved by making time run from the date of the grant of permission.
There was no doubting the jurisdiction of the House of Lords to grant leave to appeal against a refusal by the Court of Appeal of permission to apply for judicial review: observation of Lord Diplock in In re Poh [1983] 1 WLR 2 disapproved.
*Editor’s note: See now CPR 54.5(1). It was accepted that no change in meaning had resulted from the slight change in wording.
† Editor’s note: The case was remitted to the High Court for a hearing on the merits.
Robert McCracken QC and Richard Harwood (instructed by Richard Buxton, of Cambridge) appeared for the appellants; Timothy Straker QC and Andrew Tabachnik (instructed by the solicitor to Hammersmith and Fulham London Borough Council) appeared for the first respondents; Robin Purchas QC and Joanna Clayton (instructed by Masons) appeared for the second respondent.
Alan Cooklin, barrister
