“How late is too late?” is a question of interest to objectors who might want to challenge a planning decision by judicial review, and to developers considering whether they can start works. Neil and property colleague Alasdair Fleming have being doing breakfast seminars on this topic, following the latest Court of Session decision, which indicated that 16 months was not too late in the specific circumstances of that case.
In the case of R(U & Partners (East Anglia) Ltd) v The Broads Authority  EWHC 1824 (Admin), the English Environment Agency had already expended £130,000 on flood prevention works on the strength of planning permission it had been granted by the Broads Authority when the planning permission was quashed by the High Court at judicial review.
In England, a judicial review challenge must be brought promptly and no later than three months from the date on which the grounds arose. The claimant had not acted promptly in bringing the judicial review. In fact he seems to have sat on his thumbs for two months after the grant of permission before indicating he would challenge the grant, even though he was aware the Environment Agency had started work.
However, the Court decided that, for cases in which an EC Directive provided a right of challenge, a limitation period whose duration is placed at the discretion of the court is not predictable in its effect, and so does not ensure effective transposition of the Directive. The Court therefore decided that the requirement for promptness must be set aside, and the three month time limit would apply.
Bear in mind that this ruling applies to any matter where there has been breach of the Directives on strategic environmental assessment, environmental impact assessment or appropriate assessment of European conservation sites.
In Scotland, there is no long stop time limit equivalent to the three-month rule in England. An objector must bring a challenge without “mora, taciturnity and acquiescence”, i.e. delay, a failure to speak out or assert rights, and silence or passive assent to what has taken place. If the English rule on promptness must be disapplied, that throws the law in Scotland into some uncertainty. It seems to me that legislation is needed to sort this out. I wonder if the Hunterston case might have been decided differently if the Court had considered U & Partners.
But how much advantage did the challenger in U & Partners actually gain? The Environment Agency would have to have its planning application determined again, though Mr Justice Collins indicated that the planning committee could take into account the expenditure already made in works carried out in reliance on the quashed permission.
One further crumb of comfort: Mr Justice Collins was plainly unhappy with the EC law position. He emphasised it did not apply beyond cases involving EC law.
On December 2, 2011