Applicant seeking permission to apply for judicial review of council’s resolution to grant outline planning permission – Whether “application made promptly and in any event within three months” – Secretary of State declining to call in application – Whether time limit running from passing of resolution or Secretary of State’s decision not to call in application – Ord 53 r 4(1) of Rules of the Supreme Court – Part 54 of Civil Procedure Rules – Application refused – Appeal dismissed
In February 1998 St George West London Ltd (the developer) submitted outline planning applications proposing a huge urban regeneration of a site at Imperial Wharf, London SW6. The applicant and his wife lived in a ground-floor maisonette in a three-story block of flats adjacent to the site. On 15 September 1999 the council resolved to grant outline planning permission to the developer. The planning applications were then referred to the Secretary of State because they involved a departure from the unitary development plan. On 24 February 2000 the Secretary of State published his decision declining to call in the planning applications.
On 28 March 2000 the applicant applied for permission for leave to apply for judicial review of the council’s resolution to grant outline planning permission. Although accepting that there was an arguable case on the merits, the judge refused the application on the ground of delay. The applicant appealed against that decision.
Rule 4(1) of Ord 53 of the Rules of the Supreme Court, then in force, required an application for leave to be “made promptly and in any event within three months from the date when grounds for the application first arose”. The applicant contended that the judge had erred in regarding “the date when the grounds for the application first arose” as being the date of the council’s resolution to grant outline planning permission, rather than the date of the Secretary of State’s decision not to call in the applications, or even the eventual grant of planning permission. It was also submitted that the judge had erred in applying a six-week rule to the issue of promptness.
Held: The appeal was dismissed.
1. Where the objection to the final grant of planning permission is the same as to the initial resolution to grant planning permission, time begins running at the date of the initial resolution. This construction of r 4(1) of Ord 53 does not disrupt the statutory environmental impact regime, any more than its successor provision in Part 54 of the Civil Procedure Rules. An objector is required to strike at the earliest reasonable moment at a process that if the objection is sound, would otherwise end in an unlawful grant of planning permission. Such prompt action supports the objective of Council Directive (85/337 EC) and the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, and attempts to keep disruption to a minimum.
2. The application before the judge had been an application for the enlargement of time by almost four months from the end of the three-month limit. Although in some cases the fact that a resolution was subject to the Secretary of State’s decision as to call-in might provide a good reason for waiting or for extending time, in the instant case, the circumstances were capable of justifying the judge’s decision not to extend time. The applicant had failed to give either the council or the developer any warning of an intended application for judicial review. The judge’s reasoning had reflected the emphasis in planning cases on the need for speed in seeking judicial review.
3. The six-week rule for statutory challenges, derived from section 288 of the Town and Country Planning Act 1990, was, at most, a useful touchstone. Six weeks might be long enough in some cases to meet the demands of promptness; in others it might not be; and yet in other cases it might be too long. However, it was not to be substituted for the period of three months as contained in the rules.
Christopher Katkowski QC and Richard Harwood (instructed by Richard Buxton, of Cambridge) appeared for the applicants; Timothy Straker QC (instructed by the solicitor to Hammersmith and Fulham London Borough Council) appeared for the respondents; Robin Purchas QC and Joanna Clayton (instructed by Masons) appeared for the interested third party, St George West London Ltd.
Thomas Elliott, barrister
