Thursday, 5 January 2012

Promptness in judicial review

In a post under this title on 7 June 2011 I expressed the view that (despite the decision in Buglife) the effect of Uniplex would not be as wide as some people had predicted, and that I would still be advising my clients to apply promptly if they wish to challenge a planning decision by way of judicial review, rather than relying on the three-month long-stop date under CPR Part 54.

In September, the issue arose again in the High Court in R (Macrae) v Herefordshire Council [2011] EWHC 2810 (Admin), when the Court rather neatly side-stepped the problem potentially posed by Uniplex by deciding that, because this case did not involve a European directive, Uniplex did not apply, so the requirement for ‘promptness’ in the rules was lawful and therefore applicable to this case. The claim was therefore dismissed, because it had not been brought promptly.

One problem which seems to be opening up is that we have two different European jurisdictions (the European Court of Human Rights and the Court of Justice of the European Union), which seem to be taking a different approach to this issue. How are they to be reconciled?

If one follows the line of authority established in the ECHR, one should be guided by the decision of the Court of Appeal in Hardy and Maile v. Pembrokeshire County Council [2006] EWCA Civ 240. In that case Keene LJ drew attention to the fact that this very point (the challenge to the requirement for ‘promptness’) had been advanced before the European Court of Human Rights in the case of Lam v. United Kingdom, Application 41671/98, and rejected. The ECHR had stated that “In so far as the applicants impugn the strict application of the promptness requirement in that it restricted their right of access to a court, the Court observes that the requirement was a proportionate measure taken in pursuit of a legitimate aim. The applicants were not denied access to a court ab initio. They failed to satisfy a strict procedural requirement which served a public interest purpose, namely the need to avoid prejudice being caused to third parties who may have altered their situation on the strength of administrative decisions.”

On the other hand, we have the decision of the European Court of Justice in Uniplex, which seems to take the opposite view. Ultimately, I suspect that it will take an amendment of the legislation (both primary and subordinate) to resolve the position, and this amendment will need to take account of the Aarhus Convention, as well as European Law and directives.

In the meantime, it seems that defendants in judicial review cases will continue to rely on two points. They may argue, first, that Uniplex is confined to procurement cases. Secondly, if that argument fails, they may argue (in reliance on Macrae) that Uniplex applies only where a European directive is in issue. That may be sufficient to dispose of a fairly large swathe of tardy JR applications, but would still leave the argument open in all those cases involving the Habitats Directive or the Birds Directive (among others).

DEFRA is currently looking at ways in which European directives have been transposed into UK law, and whether this is having an unnecessarily blighting effect on development proposals. The issue of whether in such cases third party objectors could, in principle, have unlimited time in which to launch legal challenges based on alleged failure to follow these directives is something which should perhaps be taken on board as part of the current study.

Most planning lawyers would accept that, in the interests of justice and good administration, there should be a time limit on applications for judicial review. The one criticism which could be levelled at the rules as they are framed at present is that they contain a substantial element of uncertainty, in the sense that whilst there is theoretically a time limit of three months (which can be extended in exceptional cases), the need for ‘promptness’ and the avoidance of ‘undue delay’ leaves claimants in a state of uncertainty as to whether their claims might be rejected as having been made too late, even though made within the three-month time limit.

Prior to the House of Lords decision in Burkett, an unofficial six-week rule had become established through a line of judicial rulings in these cases. Perhaps we ought to legislate to introduce a definite six-week time limit for judicial review applications, subject to discretionary extension by the Court where there is a strong argument for exercising that discretion in favour of the claimant. Some environmental campaigners might not like it, but we really ought not to allow our legal system to be exploited and abused as a means of delaying or frustrating development where it has already been subject to due process. There must, of course, continue to be resort to the courts, but it need not be open-ended.



  1. You may also want to look at the High Court decision of Mr Justice Collins in R (U and Partners (East Anglia) Limited) v The Broads Authority and the Environment Agency [2011] EWHC 1824 (Admin). This case is interesting for two reasons. First, the endorsement, however reluctant, of the extension of the approach in Uniplex beyond just procurement at least in respect of challenges based on European considerations. Second, for the approach suggested by the Judge as a way of providing the required degree of certainty. In my view this suggestion is hugely problematic because it impacts on the time available to an objector to deal with evidence gathering, confirmation of funding, and pre-action correspondence especially when, unlike in an appeal whether the issues have already been argued in detail before the Planning Committee and the Inspector, the arguments are very often refined as the process engages.

  2. I was aware of the case of U and Partners (East Anglia) Limited, which was referred to in the Macrae case, but I am alive to the need to keep posts down to a reasonable length, so decided not to go into that case while discussing the Macrae case. However, the point David Merson raises is worth a closer look, and so I may possibly blog on this in a further post in the near future.