England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		6th June 1997

MR JUSTICE LAWS: In this application for leave to move for judicial review the Applicant, Carole McKeown, seeks to challenge the grant of a planning permission on 11th December 1996. On that day the proposed Respondent authority granted permission for an electricity substation. In order to understand the nature of the case it is necessary once to refer to an earlier planning permission, granted as long ago as 12th September 1991, for the erection of a 20 turbine windfarm at Mynydd Gorddu.

The Applicant lives no very great distance from the site of the proposed windfarm. The substation, permission for which was given in December last, was to be used as an adjunct to the windfarm and is integral to it.

It is to be noted at once that the Applicant's papers for judicial review were lodged one day before expiry of the three month period referred to in Ord 53, r.(4). I propose to refuse leave on delay grounds. In R v Swale Borough Council and another, ex parte Royal Society for the Protection of Birds [1991] 1 PLR 6 at page 23 Simon Brown J, as he then was, cited an earlier judgment of his own and said:

"... I cannot sufficiently stress the crucial need in cases of this kind for applicants to proceed with the greatest possible urgency, giving moreover to those affected the earliest warning of an intention to proceed. In this connection it should be remembered that there is conspicuously absent from the legislation any right to appeal in fact or law from a planning authority's grant of planning permission. And even when a right of challenge is given - the right of statutory application under section 245 to challenge a ministerial decision - it must be exercised within six weeks. Only rarely is it appropriate to seek judicial review of a section 29 permission; rarer still will be the occasions when the court grants relief unless the applicant has proceeded with the greatest possible celerity."

I would go further. I find it nearly impossible to conceive of a case in which leave to move for judicial review will be granted to attack a planning permission when the application is lodged more than six weeks after the planning permission has been granted. I can see no rhyme nor reason in permitting the common law remedy of judicial review to be enjoyed upon a timescale in principle more generous to an Applicant than Parliament has seen fit to fix in relation to those who desire to challenge a refusal of permission or its grant subject to conditions. I do not say there cannot be such a case; but in my judgment it would be a wholly exceptional one. It is to be remembered that the words of Ord 53, r. (4)(1) are these:

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made."

The primary requirement is that the application be made promptly. This has been emphasised in many cases in this Court. In a context such as this I find it close to impossible to see how it could be said that an application is brought promptly when it is brought not within six weeks but only just within three months.

This is what the Applicant says about delay in her latest affidavit:

"Although the decision which I challenge was taken on the 11th December 1996, it was not until receipt of the Respondent's letter of 16th December 1996... that I and my lawyers were able to assess the stance being taken by the Respondent in relation to the 1991 permission. Indeed, it was not until much later, that minutes of the meeting of 11th December 1996... were available and it became possible to see the basis upon which the Respondent had taken its decision relating to the substation. In any event, the Christmas period followed shortly thereafter. Counsel's opinion was sought. The letter before action of 29th January 1997... was then sent. An application for legal aid was hand delivered to the Legal Aid Board on 6th February 1997. The legal aid position was not finally resolved until 19 March 1997 some 6 weeks later. In any event by early March 1997 it was clear that the legal aid position would not be resolved quickly. Rather than allow the three month point to pass completely, I agreed to pay the required court fees myself (my lawyers had been acting without charge). An outline Form 86A was therefore prepared and duly lodged on 10 March 1997. In my opinion there has not therefore been any undue delay."

I have to say, with deference to the Applicant, that I regard that recital as a wholly inadequate attempt to justify the lack of promptitude in this case. Even if one accepts, a matter about which I have very considerable reservations that the proceedings could not responsibly have been launched until the Applicant's solicitors had seen the letter of 16th December 1996, to which I have been referred, nevertheless the passage of time thereafter renders this application far too late.

I do not consider it necessary in this case to make specific findings as to the extent to which the developer, a company I understand, effectively owned or managed by Dr Huws, has suffered prejudice. I base my decision on the simple footing that the application has not been made promptly and I do not consider there is good reason for extending the period within Ord 53, r.(4). However, I have heard submissions about the matter and will briefly indicate my views. In a skeleton argument prepared on behalf of the developer, who for convenience perhaps I may refer to as Dr Huws, this is said at paragraph 9:

"Very serious prejudice hardship and detriment to good administration would result if the Applicant were to obtain leave. The Company has spent very large sums (exceeding £1.02 million) on the development on the faith of the validity of the 1991 and 1996 planning permissions:-"

Then these items of expenditure are listed:

"£75,000 on roadworks up to August 1996...

- a further £6,000 on roadworks between September 1996 and March 1997...

-£335,000 on the manufacture of turbines by contract concluded on 20th December 1996...

- Contract made on 21st February 1997 to pay Messrs Pierson NV an arrangement fee of £115,000 and costs of £75,000...

- Commitment made on 24th February 1997 to pay Triodos Bank an arrangement fee of £15,000 and due diligence costs of £38,000...

- Legal fees exceeding £70,000...

- Non-refundable grid connection fee of £75,000 (in October 1993) and £25,000 (in Manchester 1995)..."

I do not understand it to be disputed that these sums have been expended. What is said on behalf of the Applicant is that unlike other cases where promptitude has been insisted upon in the planning context, the developers, and of course the authority, had notice at least of the possibility of proceedings at an early stage and indeed a formal letter before action of 29th January. As regards notice before that date, there is a letter of 12th November 1996 from the Applicant's solicitors to the authority saying in part this:

"the purpose of this letter is twofold, namely:

(a) to draw to Members' attention serious concerns that exist about the legality both of the permission that has purportedly been granted to date in relation to the wind farm at Mynydd Gorddu, and of any purported implementation..."

At the end of the letter:

"We must of course reserve our client's rights in relation to the council's determination of the matters referred to in this, and our enclosed, letter."

That might perhaps be described as a warning shot across the bows. As I have indicated a clear letter before action came at the end of January. This does not seem to me to extinguish the obvious prejudice that must be suffered by a developer who, pursuant to contractual commitments, is expending money on the faith of planning permission during the weeks which follow its grant.

It may be the prejudice here is less stark than it might be in other cases. For the Applicant some other subsidiary points are suggested, for example that Dr Huws has,, since 1991 banged the drum of the risks to his project if delay occurs. It is suggested further that the critical picture given of his company's finances (critical if this windfarm project is substantially delayed) is rather less acute than he has asserted. However, in substance it seems to me simply undeniable that a substantial degree of prejudice arises in a situation such as the present where, as I have said at the outset, something like three months elapses before the leave application is made. However, I have indicated the primary ground on which I am refusing leave.

As regards the merits of the matter, I should say at once that I have not heard any oral submissions on the Applicant's behalf. Mr Ouseley, for the local authority, addressed me very briefly concerning the main point that he would take were it necessary to embark upon substantial argument as to the merits. I make it clear that I do not refuse leave on the footing that the case is unarguable. It would not be fair to do so because, as I have said, I have not heard the Council. However, I think it appropriate that I should say this much. There are a number of grounds put forward to challenge the permission of December 1996. The principal one may be explained in this way. Attached to the 1991 permission was a condition as follows:

"The development must be begun not later than the expiration of five years beginning with the date of this permission."

Then a series of further conditions follow, and in relation to those in a number of respects, there was a requirement that the local planning authority's approval be obtained before the development was commenced.

What is said on the Applicant's behalf is that although some works were done within the five year period they consisted of matters for which approval was required, but approval was not given or was not lawfully given. Accordingly, in the eye of the law the development did not begin within the five year period from 12th September 1991 and therefore the permission lapsed on 12th September 1996. If that were right it is said the permission of December 1996 would be fatally infected.

Mr Ouseley's principal response to this argument would be to rely on the decision of the Court of Appeal in Whiteley and Sons Co. Ltd v Secretary of State for Wales and another [1992] 3 PLR 72, whose effect he summarised thus: in a case where the continued existence of a planning permission depends upon the commencement of operations which require approval, then if the operations are commenced within the period in question but without approval, the planning permission will nevertheless continue after the period in question if within that period approval is sought before enforcement action.

In this case it is said that the approvals were lawful, but if they were not they have been asked for within the appropriate time and approval could be given now. It would appear to me, looking at the matter wholly superficially and without deciding the point upon this basis, that that argument may give the lie to the central ground put forward in this challenge upon its merits. I will not embark upon the other points which are, I apprehend, necessarily subsidiary. I repeat that I refuse leave because of the lack of promptitude here which has not been excused.

MR OUSELEY: I then ask for an appropriate Order refusing leave to move for judicial review. In view of the Applicant's circumstances, I am not making an application for costs.

MR JUSTICE LAWS: Miss Otton-Goulder?

MISS OTTON-GOULDER: Neither am I.

MR JUSTICE LAWS: Very well then I simply refuse leave. Thank you very much.

MR WOLFE: May I have legal aid taxation?

MR JUSTICE LAWS: Yes. Thank you very much.