Judicial review — Time limits — Application for judicial review — Guidance on lodging applications between date of decision to grant of planning permission and referral to Secretary of State to call in application — Whether clear notice of intention to lodge application sufficient
In April 1998 a company applied for planning
permission to develop, inter alia, leisure facilities, including a
cinema. In September 1999 the applicant requested that the Secretary of State
call in the application made by the company. The Secretary of State did not do
so. Following a meeting in December 1999, Cambridge City Council determined
that they would grant planning permission, subject to the requirement of the
satisfactory implementation of a section 106 agreement, which was designed to
meet, inter alia, a traffic objection. It was also necessary for the
matter to be put before the Secretary of State before a final approval was
made. On 3 February 2000 the Secretary of State made it clear that he was not
going to call in the application. Subsequently, on 9 February, the subcommittee
approved the section 106 agreement. The applicant objected, and, on 29
February, a Form 86A was lodged against the December decision, rather than that
of 9 February. A preliminary issue between the parties was whether the
proceedings had been lodged promptly, namely within six weeks.
allowed.
It was accepted that the way to deal with
conditions precedent and referrals to the Secretary of State was to adjourn the
application until the position was clarified. In a referral case, the aggrieved
parties should notify the relevant parties within a period not greater than six
weeks, and preferably less, that there are grounds for challenge, and that,
should the Secretary of State give his approval, a challenge will immediately
be made. An indication should be given of the nature of the challenge. It need
not be as formal as Form 86A, but at least it should be a letter that sets out,
in broad terms, the grounds upon which the applicant is likely to rely. It is
not necessary for the application to be lodged. What is necessary is that the
parties should be put on clear notice of the intention to lodge, and if the
decision is approved, in the sense that the Secretary of State does not decide
to call it in, then the application must be lodged immediately: see p11A-D.
November 1999
Judicial review
This was an application made by Warner
Village Cinemas Ltd, seeking judicial review of a decision of the first
respondents, Cambridge City Council, to grant planning permission for a
development scheme to the interested party, Turnstone Estates Ltd.
Russell Harris (instructed by Berwin Leighton) appeared for the applicant,
Warner Village Cinemas Ltd.
by the solicitor to Cambridge City Council) represented the first respondent
council.
QC (instructed by Hewitson Becke &
Shaw, of Northmpton) represented the second respondent, Turnstone Estates Ltd.
judgment was delivered.
COLLINS J: I should set out very
briefly the relevant chronology. I am concerned here — as I should, perhaps,
have indicated in introducing these reasons — with an application for judicial
review of a decision by Cambridge City Council to grant planning permission for
a development of substantial leisure facilities and an hotel, housing and
auction rooms, on a site of the old cattle market, which is just the other side
of the railway line from Cambridge station.
The application was made in April 1998.
It was advertised by the city council as a departure from the local plan.
Following various amendments, impact study reports and a public meeting, the
application was eventually amended and came before the relevant committee of
the council, following readvertisement, for determination on 1 December 1999.
It seems — and I have not gone into any great detail on this — that the present
applicant for judicial review had, at one stage, been interested in, or perhaps
had even promoted, the development in question, but had dropped out of the
picture, certainly by the summer of 1999. It is concerned with another
development of leisure activities, in particular, as its name suggests, cinemas
at a site that is known as the Grafton site, which is within the city-centre
envelope and which is not that far from the site in question.
One of the things that was done, in
September 1999, by this applicant for judicial review was to request the
Secretary of State to call in the application by the second respondent to the
application, Turnstone Estates Ltd. The Secretary of State did not call it in.
Indeed, as I understand it, there was no response from the Secretary of State
in relation to these call-in applications; certainly no response indicating
what action he might or might not be taking.
The meeting of 1 December was a lengthy
one and there was a very substantial report from the officer, Mr Carter.
In the end, the committee determined that
they would grant permission for the development, subject to two matters. First,
the
meet, among other things, traffic objections that clearly — judging by the
nature of the report — would otherwise have been likely to have rendered the
development unacceptable. Of course, they might not necessarily have done so,
but certainly they were very substantial objections to the proposed
development. But, second and more importantly, for the purposes of the delay
argument that has been put before me, it was necessary, in accordance with the
relevant regulations, for the matter to be put to the Secretary of State before
a final decision to approve was made. That was because this was a site that was
owned by the local planning authority, so they had an obvious interest in the
matter, and that is one of the reasons why the matter has to be referred to the
Secretary of State. In addition, there was a departure from the plan, albeit
perhaps not a particularly major one, in connection with the traffic aspect, to
which I have already referred.
It seems that on 3 February the matter
was put to the Secretary of State, and the Secretary of State then had to
determine whether he was going to call the application in within 21 days. That,
he decided speedily, he was not going to do, and the matter came back to the
relevant subcommittee on 9 February, when the go-ahead was given. At that
meeting, also, the section 106 agreement was approved in draft.
In the meantime, the present applicant,
through planning consultants, had written a lengthy letter to the committee
putting forward a number of objections that included, but went beyond, the
matters raised in this application. It was not until 25 February that any
letter came to the council or to Turnstone indicating an intention to challenge
the resolution itself upon the basis that it was erroneous in points of law. On
29 February the Form 86A was lodged.
Now,
the point is taken that the decision under challenge is the decision of 1
December, albeit there was a subsequent decision on 9 February. That was
essentially a rubber stamp, in as much as the decision in December was to grant
planning permission, unless there was a call-in or there was an inability to
enter into a section 106 agreement in accordance with the draft (or
substantially in accordance with the draft) that had been before the committee
on 1 December. Indeed, if one looks at the report to the committee in February,
one sees that the purpose was to advise the committee on the detailed contents
of the section 106 agreement, and not to reopen the principle of the
development. It seems to me, in those circumstances, that, on the face of it,
Mr Patrick Clarkson is right to submit that the reality is — whatever may be
the way it is put in Form 86A — that the decision under challenge is that made
on 1 December. If one is looking at that, then this, as he put it, was a
leap-year case. They only got in by one day within the three months, because
they were able to make use of 29 February 2000. What he of course means is that
they just got in within the three-month period, which is the usual limit. The
test for the purposes of a permission application is well known; proceedings
must be lodged
I am not reading the precise words of the rule, but that is the effect of it.
In planning cases, the court has, in a
number of decisions, made it clear that the three months is not normally to be
regarded as the appropriate limit, but that one should look to six weeks. The
reason for that is that if planning permission is refused under the relevant
legislation, an applicant has six weeks to challenge. It would be illogical if
a greater time were given to a disgruntled opponent of a planning permission
that has been granted to challenge it. Indeed, there is every reason why the
period should be as short as reasonably possible, because once planning
permission is granted, then, clearly, the recipient is entitled to act upon it,
and may often expend money in reliance upon it.
It seems to me — and, indeed, I have so
decided in one case, following a decision of Laws J, in a case whose name I am
sorry to say I cannot recall — that six weeks is to be regarded as the norm in
these cases. This application is beyond that period, and considerably beyond.
However, Mr William Hicks QC relies upon a decision of Sullivan J, given on 29
November 1999, in R v Samuel Smith Old Brewery unreported, Crown
Office no 2614/99. This was a permission application, and the points taken to
challenge the grant of permission included delay. That was a case where there
had been a referral to the Secretary of State because it was a departure
application, but the Secretary of State had, in due course, decided not to
intervene. The point that was taken was the same point, essentially, as is
taken here, namely that the time ran not from the decision of the Secretary of
State that he was not going to intervene, but from the date of the original
decision of the council that they were of a mind to grant planning permission.
Sullivan J, on that point, said:
As to delay, it seems to me that a
distinction can sensibly be drawn and should be drawn between cases where the
council is obliged to refer a departure application to the Secretary of State.
In my judgment it, in most cases, would
plainly be premature to challenge an indication that the council was minded to
grant permission if the Secretary of State was not going to call the matter in,
and other cases where there are preconditions, such as the need to prepare 106s
and so on.
Now, there is no doubt that the
application was made sufficiently promptly after the February decision, and the
contrary has not been argued. But, submits Mr Clarkson, the approach indicated
by Sullivan J is one that should not be followed, because it inevitably leads
to delays. It is difficult to see the logic in the distinction drawn between
cases of referral to the Secretary of State and other cases where there are
conditions precedent to the grant of permission that had to be fulfilled
expeditiously before the final conclusion could be reached. The reality is that
if there is an error of law identified in the original decision, that error
ought to be identified and challenge ought to be made to it at the earliest
possible opportunity.
Mr
Clarkson submits that the way to deal with conditions, precedents and referrals
to the Secretary of State is, in an appropriate case and if the need arises, to
adjourn the application until the position is clarified. For my part, I see
force in that submission. It may be that it is not necessary to go so far as to
lodge an application. What, as it seems to me, should happen in a referral case
is that the relevant parties should be notified within a period that should not
be any greater than six weeks, and preferably should be less, that there are
grounds for challenge, and that, should the Secretary of State give his
approval, a challenge will immediately be made. An indication should be given
of the nature of the challenge. It need not be as formal as Form 86A, but at
least it should be a letter that sets out, in broad terms, the grounds upon
which the applicant is likely to rely.
As I say, I do not think that it is
necessary for the application to be lodged. What is necessary is that the
parties should be put on clear notice of the intention to lodge, and, if the
decision is approved — in the sense that the Secretary of State does not decide
to call it in — then the application must be lodged immediately. No delay after
that can be countenanced. It seems to me that, in principle, that gives the
necessary information to the interested parties, so that they know where they
stand and do not indulge in any unnecessary expense. But it also covers the
situation if there is a delay while there is a referral to the Secretary of
State. It seems to me that the distinction between a referral to the Secretary
of State and the other preconditions may lie in time. In the case of a
referral, the Secretary of State has to make his decision within 21 days. That
being so, there is no substantial delay occasioned, and it is reasonable for an
application not to be lodged — provided, as I have said, that the necessary
information is given about it — until the Secretary of State has reached his
conclusions.
Conditions precedent may take longer. It
seems to me that, in general, it is sensible to require that the application be
lodged so that if there are any substantial objections, they can be identified.
Equally, if the application is manifestly ill-founded, that can be dealt with
at an early stage, and any potential challenge headed off by the appropriate
court order, so that there can be no interference with the planning permission
following fulfilment of any conditions precedent.
What I have said, to an extent, goes
beyond what has been put before me in this case, and I am conscious that, in
giving what I anticipate and hope will be regarded as sensible guidance for the
future, I have been stating matters ex tempore and without the fullest
of argument, and, in those circumstances, what I have said can be regarded only
as guidance, and no more. But it does seem to me that it would be wrong to
penalise the applicant in this case for having relied upon Sullivan J’s
decision. I do think, however, that it was in error in not making clear at an
earlier stage that it was determined to challenge the permission. However, that
is not, in my view, a reason to prevent it making its application in this case.
Application allowed.