Still on the clock: judicial reviews *6 years* after planning permission!?!
Just think of it. You’ve had a site in mind. The apple of your eye. It may be not much more than a humble patch of grass or concrete for now, but think of it. All that potential. And all that risk. But after a few sleepless nights, you decide - heck, some risks are worth taking. So you instruct a planning consultant, an architect, who knows - maybe a highways engineer, a masterplanner, a heritage expert, an ecologist, a solicitor… maybe even a barrister (😬). You meet local planning officers. They say - change this, tinker with that, and we’ll take it to committee. Committee night arrives. Butterflies in your stomach. Local politicians pore over your plans, difficult questions are asked, objectors do their thing, you can’t quite breathe, but in the end… miracle of miracles… the vote is carried in your favour. Permission granted. The risk paid off. 🍾.
Maybe you sleep a little sounder that night. Maybe, if you’re as paranoid as I am, you wait with bated breath for the passing of the 6 week period for bringing a judicial review challenge against your sparkly new consent. But 6 weeks comes and goes. With not a challenge in sight. Urgh. Relief.
And as the days turn into weeks, the weeks turn into months, maybe there are contractors on site, the thing actually gets built - who knows, people may be moving in. And all those consultants, the planners, the local politicians - even those awful barristers - fade into the dim and distant past.
Years go by. 6 years. The world turns.
Then one morning, you get an email. Someone’s lodged a legal challenge. To what? To the Council’s decision to grant you planning permission. Way back on that dark night in the Council Chamber. But hang on, they can’t do that. Can they? You lawyers were clear about it - don’t the Civil Procedure Rules say something about 6 weeks?
For some of us, this is the stuff nightmares are made of. But last week the High Court quashed the grant of consent for a holiday park in Devon which had been granted in 2014 - when the judicial review challenge had been lodged 6.5 years later! And in 2019, the Court of Appeal upheld the quashing of a permission for the erection of 3 marquees to be used for events - when the challenged had been lodged over 5 years later!
So what’s the law actually say about this? And why on earth are courts going around quashing consents so many years down the line?
Right. So. Here are 5 headlines on the law (for all the references, see §21 of the Thornton Hall case):
The Civil Procedure Rules tell us that for planning decisions, any judicial review claim “must be filed not later than six weeks after the grounds to make the claim first arose". But here’s the rub - unlike for challenges to appeal decisions where there’s a fixed statutory 6 week limit (on which, see here) - the court has power to extend time for filing a JR against a planning permission.
But when a grant of planning permission is challenged by a claim for judicial review, a claimant must proceed with the "greatest possible celerity" (we all need to start using the word “celerity” more often) because a landowner is entitled to rely on a planning permission granted by a local planning authority exercising its statutory functions in the public interest. In such cases the court will only rarely accede to an application to extend time for a very late challenge to be brought.
When faced with an application to extend time for the bringing of a claim, the court will seek to strike a fair balance between the interests of the developer and the public interest. Objectors who were properly notified of an application are expected to move swiftly. Extending time for a legal challenge to be brought simply because an objector did not notice what was happening is inappropriate. Prompt legal action is required unless very special reasons can be shown.
The court will not generally exercise its discretion to extend time on the basis of legal advice that the claimant might or should have received.
It depends on the facts of each case. If there is a strong case for saying that the permission was ultra vires, the court might in the circumstances be willing to grant permission to proceed, but given the delay, it requires a much clearer-cut case than would otherwise have been necessary.
Are you still with me? To cut to the chase: normally, any JR has to come within 6 weeks. Very special reasons required to go beyond the 6 weeks. But sometimes those reasons exist. Which means the 6 weeks isn’t sacrosanct.
So what kind of situation needs to arise to lead a court into quashing a permission many, many years later? Here are the two big recent examples:
December 2011: planning permission granted to erect marquees for functions and conferences, but without any conditions. That was a problem, because the committee had only resolved to grant planning permission subject to a number of conditions, including one to limit the permission to 5 years. But in the end, that condition wasn’t imposed. And what’s worse is that the Council tried to hide the error.
July 2017: a local competitor discovers the situation.
August 2017: claim lodged.
March 2018: permission quashed in the High Court. The judge accepted that the decision notice without any conditions hadn’t faithfully recorded the decision to grant permission.
April 2019: Court of Appeal confirms the quashing, noting that the developer in that case - far from being prejudiced - had actually got a bit of a windfall by being able to rely on the unconditioned consent for so many years. The Court said that the circumstances weren’t just highly unusual… they were unique.
January 2014: planning permission granted to extend opening times for lodges at a holiday bark near Croyde Bay Beach in Devon. Buuuuuuut… the red line was drawn far too wide (in error) and the Council didn’t spot it. Both the Council and the developer accepted that the 2014 permission was unlawful. So you know - that’s a bit unusual!
July 2020: claim lodged, a few months after it became clear though a lawful development certificate appeal that the developer was not asserting the effect of the permission was to allow caravans to be placed in new areas under the incorrectly extended red line.
March 2021: the High Court quashes the permission. The judge gave weight to past and future financial prejudice the developer would suffer. But on the other hand, the extension of the site hadn’t yet been implemented. The costs so far hadn’t been too great. Upholding the permission in a prominent site in the AONB would, the court thought, be very harmful.
Again the court thought this not only unusual, but unique.
If you’ve a spare hour, have a read through those judgments. To get a flavour of how very weird both the facts of both of those cases were. And I hope then you’ll get the message that - a little beyond the slightly scary headlines - it really does take a strange case to persuade the court to extend time by so very many years. A strange case. But it happens. From time to time. It happens. So if you’re sitting on a consent which you have a sneaky suspicion doesn’t reflect the thing you actually applied for… take care. The clock hasn’t run out quite yet.
In the meantime, stay safe and well #planoraks. And keep on planning.
