A staggered starting gun

A recent decision implies that we we now have twin-speed judicial review. For cases which do not raise Euro-points, Finn-Kelcey and promptness still runs. But for anything which imports general European principles of law, then 3 months and no less is the rule, writes David Hart QC

All public lawyers know that judicial review must be commenced “promptly and in any event not later than 3 months” after the public act complained of, failing which a claimant is at the mercy of the court as to whether to extend time. And the word “promptly” in that context means that one can bowl out a claim even if it is commenced within those 3 months: see the Court of Appeal in Finn-Kelcey.

Or perhaps not. A recent environmental case, Buglife, grapples with this problem, and decides that, on the contrary, a claimant has an “unqualified entitlement to a period of up to three months before it must file its claim.” Hence the decision is of real practical importance, and there are big questions about its “reach”.

Back a stage, to the facts. Buglife, an insect (and other invertebrate) conservation group, commenced proceedings two days before the end of the 3 month period. They challenged the grant of outline planning permission for a new business park on a huge area of brownfield land on the Isle of Grain.

Humans may not relish living amongst the detritus of a long-abandoned oil refinery, but bugs do. Indeed in the 25 years since abandonment, the site had become one of National Importance for invertebrates, not least for the otherwise dramatically declining Brown-banded Carder Bee. And the challenge centred on what Buglife said was a wholly inadequate Environmental Impact Assessment which did not explain sufficiently clearly how the development would affect the ecology and how this effect would be mitigated against.  The EIA requirements were derived from the much-litigated EU EIA Directive, as transposed via domestic regulations.

The local planning authority and developer said, amongst other things, that the proceedings were not promptly commenced.

Buglife founded its delay argument on a recent decision of the CJEU, in C-406/08 Uniplex, importantly post-dating Finn-Kelcey. This was a public procurement case where domestic regulations “copied out” exactly the same formula found in CPR 54.5 to set statutory deadlines for challenges under the Public Procurement Directive. The CJEU said that a limitation period which depended on the discretion of the domestic court - as this wording plainly did - was “not predictable”, and therefore the domestic regulations did not ensure effective transposition of the Directive. Ergo, said Buglife, CPR 54.5 was not predictable, and was, by the same token, unenforceable as against Buglife.

To follow the reasoning which led the judge to accept this argument, and to assess its applicability to other cases, it is necessary to look at the Uniplex legislative regime as described by the CJEU, and then examine the EIA Directive in Buglife.

Article 1(1) of the Public Procurement Directive 89/665 requires Member States to guarantee that decisions of public authorities can be subjected to effective review which is as swift as possible. In order to attain the objective of rapidity pursued by that directive, Member States may impose limitation periods for actions in order to require traders to challenge promptly preliminary measures or interim decisions taken in public procurement procedures.

So far, so good; limitation periods are within the law, but are not necessarily required by it in a specific form. But the CJEU added “The objective of rapidity pursued by Directive 89/665 must be achieved in national law in compliance with the requirements of legal certainty. To that end, Member States have an obligation to establish a system of limitation periods that is sufficiently precise, clear and foreseeable to enable individuals to ascertain their rights and obligations…” [39]

What then of the EIA Directive? The other parties in Buglife said that, by contrast with the Public Procurement Directive which provided for time limits, the current measure (CPR 54.5) was of general application and the EIA Directive did no more than contain a very general requirement to give effect to that Directive in domestic laws. Therefore Uniplex did not apply.

This received short shrift from HHJ Anthony Thornton QC. Uniplex, he decided, applied “general and core principles of Community Law which are applicable to all directives.” It had general application to “enforcement proceedings arising out of any directive.” Hence there was a failure of the legislature to transpose the EIA Directive into domestic law in a way that avoids such uncertain time limits; it follows that the promptness requirement “is not enforceable in English courts following the Uniplex decision.”

So, if this is right, we now have twin-speed JR. For cases which do not raise Euro-points, Finn-Kelcey and promptness still runs. But for anything which imports general European principles of law, then 3 months and no less is the rule.

Oddly, Art.10(a) of the EIA Directive does not get a mention in the judgement. This Aarhus-derived provision requires member states to provide for a route for challenging decisions involving the EIA process. This review procedure must be “timely” – wording not a million miles away from the Public Procurement Directive’s requirement for rapidity of challenge.

So the decision throws down all sorts of gauntlets. Is it simply wrong (per the defendants)? Or is it right, but on a narrower basis, namely that both the Procurement Directive and the EIA Directive contain provisions as to challenges and their timeliness? Or is it right on the basis decided by the judge, namely that any Euro-challenge must be “effective”, and effectiveness, in whatever context, requires sufficiently certain time limits?

Finally, a taster for two other elements of the judgment. First, it identifies the difficulties inherent in carrying out a once-and-for-all EIA at the outline stage when the precise nature of the development has not been settled – particularly where the underlying habitat is itself subject to rapid ecological change. Secondly, it touched on but does not answer the important question of the appropriate standard of review in an EIA challenge, though not before giving this tantalising indication.

“The Administrative Court is now obliged to determine as part of the judicial review process, antecedent factual conditions precedent. These would, or certainly could, include such matters as whether the ES contained sufficient data to enable it to pass muster as a required ES notwithstanding current authority suggesting that the question is a matter of discretion to be decided exclusively by the planning authority.”

A rattling of the planners’ dovecots, methinks.

David Hart QC is a barrister at 1 Crown Office Row.