High Court issues key ruling on planning JR time limits where EU right engaged

The European Court of Justice decision in Uniplex on time limits in which to bring procurement challenges applies equally to judicial review in planning cases where a European right is engaged, a High Court judge has concluded.

The case of R (U and Partners (East Anglia) Limited) v The Broads Authority and the Environment Agency [2011] EWHC 1824 related to planning permissions sought by the Environment Agency for new relief flood defences on land adjoining Peto’s Marsh at Carlton Colville.

The flood defences were phase 2 of the improvements to Carlton Marshes which would have seen a crosswall built to run along side the Marsh, limiting machinery access to the land.

The claimant, a local landowner, sought to challenge the planning permissions by judicial review.

Mr Justice Collins quashed the permissions in the High Court this month, concluding that the Broads Authority had failed to properly implement the requirements of European Directive 85/337/EEC when dealing with the assessment and consideration of the environmental impact.

The Broads Authority had taken the view that the proposal did not need an environmental assessment, but it significantly miscalculated the size of the area covered by the defences – believing it to be only 1 hectare when it was actually 4.2 hectares.

The judge also analysed the timing of the proceedings. The rule for judicial review is that proceedings must be started “promptly and in any event not later than three months”.

Mr Justice Collins said he was satisfied in the circumstances that the claim was not brought promptly, in that it was started six days before the expiry of the three-month period and no warning had been given to the Environment Agency about the impending action. The Environment Agency had already started work on the defensive wall, incurring expenditure of £130,000.

However, the judge said there were two reasons why permission would not be refused.

The first was the strength of the case put forward by the claimant, with the grant of planning permission “clearly ultra vires”.

The second was that there had been a breach of the directive and there were ECJ decisions which indicated that Community Law did not permit a time limit within which any proceedings must be brought which may depend on the exercise of judicial discretion.

“The limit must be certain since otherwise the protection of rights derived from Community Law would not, it is said, be effective,” Mr Justice Collins explained. “But if a certain time limit is not met, Community Law does not require that a decision be set aside even if it was made in breach of the law.”

The key ECJ ruling was in Uniplex (United Kingdom) Ltd v NHS Business Services Authority [2010] PTSR 1377, a public procurement case where the European Court ruled that UK regulations that included the rule on bringing proceedings “promptly and in any event not later than three months” did not transpose the relevant directive effectively.

Mr Justice Collins said he was “far from persuaded” that the ECJ’s decisions – in Uniplex and Commission of the European Communities v Ireland [2010] PTSR 1403 – were satisfactory. “It said that it had put before it arguments based on the importance of case law in the common law system. The judge's discretion is not exercised arbitrarily and Finn-Kelcey makes the position clear. But the court seems to have thought that any possibility of the exercise of discretion by a judge contravened the principle of effectiveness.”

The judge added: “Having regard to the importance of promptness in challenging grants of planning permission, serious consideration should in my view be given to amending CPR 54.5 so as to impose a six-week limit for all such challenges.”

David Merson, Head of Planning at Steeles Law who worked on the case, said: “The decision is important because it vindicates the company’s position. It has set a precedent for the future as to the time limits in bringing judicial review proceedings.

“Readers will observe that Mr Justice Collins proposes a significant change to the legislation and civil procedure rules which could, if adopted, severely impact on a claimant’s ability to mount such challenges in the future."

Philip Hoult