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Judgments - Regina v. London Borough of Hammersmith and Fulham and Others, Ex P Burkett and Another

HOUSE OF LORDS

Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Millett Lord Phillips of Worth Matravers

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA
v.
LONDON BOROUGH OF HAMMERSMITH AND FULHAM
(RESPONDENTS) AND OTHERS EX PARTE
BURKETT AND ANOTHER (FC) (APPELLANTS)

ON 23 MAY 2002

[2002] UKHL 23

LORD SLYNN OF HADLEY

My Lords,

    1. This appeal raises an important question in the context of planning law. The facts and the issues are set out in the speech of my noble and learned friend Lord Steyn to which I gratefully refer.

    2. In summary, a committee of the local planning authority decided on 15 September 1999 that planning permission should be granted for a large scale development in Fulham subject to certain conditions being fulfilled. On 6 April 2000 the appellant applied for leave to move for judicial review of that decision. On 12 May 2000 planning permission was actually granted.

    3. At that time Order 53 r 4(1) of the Rules of the Supreme Court provided that an application for leave to apply for judicial review should be made "promptly and in any event within three months from the date when grounds for the application first arose". If the relevant date was 15 September 1999 the application was clearly out of time. Richards J and the Court of Appeal refused permission on the ground that the application was out of time.

    4. It is clear that if the challenge is to the resolution (as it may be) time runs from that date, but the question on the present appeal is whether, if the application is amended to challenge the grant of planning permission rather than the resolution, time runs from 15 September 1999 or 12 May 2000.

    5. In my opinion, for the reasons given by Lord Steyn, where there is a challenge to the grant itself, time runs from the date of the grant and not from the date of the resolution. It seems to me clear that because someone fails to challenge in time a resolution conditionally authorising the grant of planning permission, that failure does not prevent a challenge to the grant itself if brought in time, i e from the date when the planning permission is granted. I realise that this may cause some difficulties in practice, both for local authorities and for developers, but for the grant not to be capable of challenge, because the resolution has not been challenged in time, seems to me wrongly to restrict the right of the citizen to protect his interests. The relevant legislative provisions do not compel such a result nor do principles of administrative law prevent a challenge to the grant even if the grounds relied on are broadly the same as those which if brought in time would have been relied on to challenge the resolution.

    6. The question whether an obligation to apply "promptly" is sufficient to satisfy European Community law or Convention rights as to certainty does not arise in this case and I do not comment on it.

    7. As to the preliminary objection to the House's jurisdiction this case is plainly distinguishable from In re Poh [1983] 1 WLR 2 since the Court of Appeal here gave leave to appeal from the judge and heard the appeal. It is wholly unacceptable that the House should not have jurisdiction to hear such an appeal. I consider in any event that the dictum in In re Poh which is relied on for the contrary result should be laid to rest.

    8. I would accordingly allow the appeal and remit the substantive question to the High Court for decision.

LORD STEYN

My Lords,

    9. This appeal raises important questions of law in regard to delay in launching judicial review proceedings. The context is town planning. The proposal concerns a large development at Imperial Wharf, Fulham, London. The appellant is Mrs Burkett who lives in a ground floor maisonette adjoining the site. She believes that the development will have an adverse effect on her quality of life and the health of her family. The respondent is the London Borough of Hammersmith and Fulham ("the local authority"). St George West London Ltd is the developer and is joined in the proceedings as an interested party ("the developer"). It will be necessary to explain the circumstances of the case in some detail. There is, however, an anterior legal question to be considered.

I. Jurisdiction.

    10. The issue arises in this way. Mrs Burkett and her late husband applied for judicial review. The matter came before Richards J. He refused permission on the grounds of delay. The Court of Appeal granted permission to the applicants to appeal from the decision of Richards J. After a full inter partes hearing the Court of Appeal refused permission to seek judicial review on grounds of delay and dismissed the appeal. The Court of Appeal refused leave to appeal to the House of Lords. An Appeal Committee granted leave to appeal.

    11. Relying on the decision of the House of Lords in In re Poh [1983] 1 WLR 2 counsel for the local authority submitted that the House does not have jurisdiction to hear an appeal from a decision by the Court of Appeal refusing permission to seek judicial review. In In re Poh the judge had refused leave to apply for judicial review. The applicant appealed ex parte by originating motion to the Court of Appeal who refused leave. The applicant sought leave to appeal to the House. The House ruled that there was no jurisdiction to grant leave. Giving the brief reasons of the House Lord Diplock observed, at p 31:

    "Their Lordships are not concerned with the procedure whereby this application moved from the Divisional Court to the Court of Appeal, because the question we have to consider is whether this House has jurisdiction to entertain the application. Counsel instructed by the Treasury Solicitor has taken the preliminary point that the House has no jurisdiction under the Appellate Jurisdiction Act 1876 to entertain an appeal from refusal of leave to apply for judicial review under RSC Ord 53. He relies upon the construction of section 3 of the Act of 1876 which was approved by this House in Lane v Esdaile [1891] AC 210 . . ."

Three points need to be noted about this statement. First, Lane v Esdaile is only authority for the general proposition that whenever a power is given to a court or tribunal by legislation to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive: see In re Housing of the Working Classes Act 1890, Ex p Stevenson [1892] 1 QB 609 (Court of Appeal). Secondly, Lord Diplock extended this rule to an appeal from a refusal of leave to apply for judicial review. Thirdly, Lord Diplock gave no reasons for this extension of the Lane v Esdaile principle.

    12. The decision in In re Poh has proved troublesome. In Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1 the Privy Council cast doubt on the reasoning in In re Poh. Lord Hoffmann observed, at p 18B, that a renewed application to the Court of Appeal under RSC Ord 59, r 14(3) is a true appeal with a procedure adapted to its ex parte nature. Referring to In re Poh Lord Hoffmann stated:

    "It would not be right for their Lordships to make any comment upon this decision in its application to appeals from the English Court of Appeal to the House of Lords. But the judgment expressly disclaimed any expression of view upon the nature of 'the procedure whereby this appeal moved from the Divisional Court to the Court of Appeal'. The decision is therefore not inconsistent with their Lordships' opinion that the application to the Court of Appeal is a true appeal, not excluded by the principle in Lane v Esdaile. Their Lordships accept that this conclusion makes it difficult to identify the reasoning by which the House of Lords decided that the principle applied to a further appeal to the House of Lords . . ."

In R v Secretary of State for Trade and Industry, Ex p Eastaway [2000] 1 WLR 2222 the House considered In re Poh but did not have to rule on its status. The Eastaway case is only authority for the proposition that when the Court of Appeal has refused permission to appeal in the face of a first instance refusal of permission to seek judicial review the House has no jurisdiction to give leave to appeal: see at p 2228A-B.

    13. Counsel for the local authority submitted that the decision in In re Poh [1983] 1 WLR 2, read with the observation that "[their] Lordships are not concerned with the procedure whereby this application moved from the Divisional Court to the Court of Appeal", appears to deprive the House of jurisdiction to entertain the present appeal. A material difference, however, is that in the present case the Court of Appeal granted leave to appeal and heard the appeal. It would be extraordinary if in such a case the House had no jurisdiction. Nothing in statute law or in Lane v Esdaile [1891] AC 210 provides any support for such a view. Moreover, as Lord Hoffmann pointed out in the Kemper case [2000] 1 AC 1, 18B-C, it has never been suggested either before or after the decision in In re Poh that appeals to the Court of Appeal against refusal by the High Court of leave to apply for judicial review is caught by the rule in Lane v Esdaile. In my view the conclusion is inescapable that Lord Diplock's extempore observation was not correct. It follows that the House has jurisdiction to grant leave to appeal against a refusal by the Court of Appeal of permission to apply for judicial review.

    14. The jurisdictional objection to the hearing of the appeal must be rejected.

II. The Legal Background.

    15. In order to make the case intelligible it is necessary to set out some of the legal background to the planning application. Environmental assessment pursuant to Council Directive of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (85/337/EEC) is a fundamental instrument of European Community policy. The preambles of the Directive include the following:

    "Whereas … the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects; whereas they affirm the need to take effects on the environment into account at the earliest possible stage in all technical planning and decision-making processes; whereas to that end they provide for the implementation of procedures to evaluate such effects;

    . . .

    Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after proper assessment of the likely significant effects of these projects has been carried out whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question;"

Article 2 provides:

    "1. Member states shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects."

Article 5 provides:

    "3. The information to be provided by the developer in accordance with paragraph 1 shall include at least:

    -  a description of the project comprising information on the site, design and size of the project,

    -  a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects . . ."

The Directive creates rights for individuals enforceable in the courts: World Wildlife Fund (WWF) v Autonome Provinz Bozen (Case C-435/97) [2000] 1 CMLR 149, paras 69-71; Berkeley v Secretary of State for the Environment [2001] 2 AC 603. There is an obligation on national courts to ensure that individual rights are fully and effectively protected: see the Berkeley case, at pp 608D (Lord Bingham of Cornhill) and 618B-H. The Directive seeks to redress to some extent the imbalance in resources between promoters of major developments and those concerned, on behalf of individual or community interests, about the environmental effects of such projects.

    16. It is unnecessary to describe the familiar planning regime enshrined in the Town and Country Planning Act 1990. For present purposes it is sufficient to point out that there is a general prohibition on the grant of planning permission without consideration of environmental information: Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (SI 1988 No 1199), regulation 4.

    17. Persons aggrieved by planning decisions may seek permission to apply for judicial review. Rules of court govern the making of judicial review applications. For present purposes provisions dealing with delay are directly relevant. At the relevant time RSC Ord 53, r 4(1), was in force. It provided:

    "(1) 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."

It has now been replaced by rule 54.5(1) of the Civil Procedure Rules. It provides in respect of applications for judicial review:

    "The claim form must be filed—

    (a)  promptly; and

    (b)  in any event not later than three months after the grounds to make the claim first arose."

    18. It is also necessary to draw attention to section 31(6) of the Supreme Court Act 1981. It provides:

    "Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant -

    (a) leave for the making of the application; or

    (b) any relief sought on the application,

    if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."

The differences between the rules of court and section 31(6) are analysed in Craig, Administrative Law, 4th ed (1999), pp 791-793. Pertinent to the present context is the fact that section 31(6) contains no date from which time runs and accordingly no specific time limit. It is, however, a useful reserve power in some cases, such as where an application made well within the three month period would cause immense practical difficulties. An illustration is R v Rochdale Metropolitan Borough Council, Ex p B, C, and K [2000] Ed CR 117. Having referred to section 31(6), Mr David Pannick QC (sitting as a deputy judge of the High Court) stated, at p 120:

    "In my judgment, it is absolutely essential that, if parents are to bring judicial review proceedings in relation to the allocation of places at secondary school for their children, the matter is heard and determined by court, absent very exceptional circumstances, before the school term starts. This is for obvious reasons relating to the interests of the child concerned, the interests of the school, the interests of the other children at the affected school and, of course, the teachers at that school."

The good sense of this approach is manifest.

    19. Finally, for the sake of completeness, I refer to the statement by Wade and Forsyth, Administrative Law, 8th ed (2000), p 688 that the most active remedies of administrative law - declaration, injunction, certiorari, prohibition, mandamus - are discretionary and the court may therefore withhold them if it thinks fit. On the other hand, as the same authors point out, "(the) true scope for discretion is in the law of remedies, where it operates within narrow and recognised limits . . ."

III. The Planning Application.

    20. Imperial Wharf is a site comprising some 32 acres. It had formerly been used by British Gas for operational purposes, and parts of the site had been let out for industrial use. On 26 February 1998 the developer applied to the local authority for outline planning permission for:

    "A mixed use development comprising 1,803 residential units (1303 private flats and 500 affordable dwellings in the form of flats and houses), an hotel, class A1 retail, class A3 restaurant, class D community uses, health and fitness club, class B1 offices, public open space and riverside walk, together with associated car parking, landscaping and access road."

It is one of the largest current development sites in London. The application for outline planning permission proposed that design, external appearance and landscaping of the whole development were to be reserved for later determination. The proposed scheme was not in accordance with the development plan. On 16 March 1998 the local authority asked the developer to submit an environmental statement with the planning application. On 27 May 1998 the developer submitted a document described as an environmental statement.

    21. The agreed statement of facts and issues explains the potential impact of the development on Mrs Burkett and her daughter. Mrs Burkett lives with her asthmatic daughter. Their home and garden are immediately adjacent to the site. Her husband died after the Court of Appeal decision. He had been a chronic diabetic with a liver disorder and had been housebound for much of the time. Works have regularly caused dust to cover all the surfaces in the maisonette. A particular concern has been the effect of the development on the health of the family. In 1999, at a tenants' association meeting, Mr and Mrs Burkett were advised that they could not remove the paving blocks from their garden and replace them with lawn because of problems of contamination. This was apparently due to previous contamination of the land. On 30 July 1999 Mrs Burkett's solicitors, Richard Buxton, then assisting a pressure group on a pro bono basis, wrote to the local authority warning that the environmental statement was inadequate and that it would be unlawful to approve the planning application. This letter was drawn to the attention of the relevant committee when it came to consider the planning application.

    22. On 15 September 1999 the local authority's planning and traffic management committee considered the application. The committee resolved to refer the application to the Secretary of State as a departure from the development plan. It further resolved to authorise the director of the environment department of the local authority to grant outline permission subject to (i) completion of a satisfactory agreement enforceable pursuant to section 106 of the 1990 Act and (ii) there being no contrary direction on behalf of the Secretary of State from the Government Office for London. On 5 October 1999 the Government Office for London imposed a direction pursuant to article 14 of the Town and Country Planning Act (General Development Procedure Order) 1995 (SI 1995 No 419) prohibiting the grant of permission. On 24 February 2000 the Government Office for London decided not to call in the application and lifted the prohibition under article 14. On 28 March 2000 Richard Buxton wrote to the local authority expressing concerns about the inadequacies of the environmental statement and inviting reconsideration by the local authority. On 29 March 2000 the local authority replied asking for further particulars of the claimed inadequacies.

IV. The Judicial Review application.

    23. On 6 April 2000 Mr and Mrs Burkett submitted an application for permission to apply the judicial review. Form 86A identified the decision to be challenged as the resolution of 15 September 1999. It described the substantive relief sought as "An order for certiorari to quash the above resolution". It will be observed that the application was made more than six months after the resolution of 15 September 1999. On 17 April 2000 Richard Buxton sent a copy of the application for judicial review to the local authority again inviting them to reconsider the resolution for the grant of planning permission. On 19 April 2000 the local authority told the Crown Office that it might wish to make representations both on delay and on the substantive grounds of challenge. The local authority told the developer of the application. On 25 April 2000 Richard Buxton reminded the local authority that it had a complete copy of the application for perm. to apply for judicial review. In early May 2000 the developer and the local authority lodged representations with the court.

V. Grant of Planning Permission.

    24. On 12 May 2000 the local authority and the developer completed an agreement under section 106 of the 1990 Act in respect of the developer's planning obligations. Acting on the authority of the resolution of 15 September 1999 the director of the environment Department of the local authority granted outline planning permission on the same day.

VI. The decision at first instance and in the Court of Appeal.

    25. On 18 May 2000 Newman J refused permission to apply for judicial review on the papers in respect of both delay and merits. On 29 June 2000 Richards J accepted after reading what he described as detailed skeleton arguments from the local authority and the developer, but without hearing oral arguments from them, that the grounds for judicial review were, on the merits, arguable but refused permission on the grounds of delay. In an unreported judgment Richards J addressed the critical question as follows:

    "When did grounds for the application first arise? [Counsel for the applicants] submits that it was reasonable to wait until the Secretary of State's decision not to call the application in. Alternatively, he would, if necessary, contend that the relevant date is the date when planning permission was actually granted. In my judgment, however, the relevant date was the date when the respondent passed its resolution to grant outline planning permission. That was the operative decision. That - not some later event - is what is challenged in the Form 86A. The fact that there were still a number of contingencies before the formal grant of planning permission does not mean that grounds for the application arose only at some later date. The existence of those contingencies is a matter to be considered in relation to the discretion to extend time, if there was a failure to apply promptly. It does not, in my view, lead to the conclusion that time did not begin to run at the date of the resolution."

In the circumstances, and particularly in the absence of a clear warning by the applicants to the local authority, the judge refused to extend time.

    26. On 20 November 2000 the Court of Appeal granted permission to appeal and heard the appeal. The Court of Appeal did not examine the merits of the substantive issues. It concentrated on the issue of delay. Counsel for the applicants had argued that the final grant of planning permission is the single event from which all rights and obligations flow and it is therefore the date from which time runs against the citizen. In the judgment of the court (Ward, Sedley and Jonathan Parker LJJ), given on 13 December, this argument is dismissed on the following ground (paragraph 8):

    "The applicants' argument, as [counsel for the local authority] amply demonstrated, faces two initial hurdles. One is that their Form 86A, lodged on 6 April 2000, specifies the resolution of 15 September 1999 as the decision to be challenged. The other is that, on the face of it, it is right to do so, since Order 53 rule 4(1) of the Rules of the Supreme Court, which were then in force, in terms required an application for leave to be 'made promptly and in any event within three months from the date when grounds for the application first arose'. Since the impugned environmental impact statement was as necessary to the resolution as to any subsequent steps, the logic of measuring time from the resolution seems inescapable."

Acknowledging "that nothing in a resolution is irrevocable until planning permission is actually granted" (paragraph 10) the Court of Appeal observed (paragraph 11):

    "We do not doubt the legal accuracy of any of this, but it fails in our judgment to disturb the proposition that where the same objection affects the initial resolution as will affect the eventual grant of permission, it is as a simple matter of language at the date of the resolution that the objection and therefore the grounds for the application first arise. We do not accept [counsel for the applicants'] submission that to give effect to this construction of Order 53 rule 4(1), any more than to its successor provision in Part 54 of the Civil Procedure Rules, disrupts the statutory environmental impact regime. What it does is require an objector to strike at the earliest reasonable moment at a process which, if the objection is sound, will otherwise end in an unlawful grant of planning permission. By doing so it supports the objectives of [Council Directive (85/337/EEC)] and the [1988] Regulations and attempts to keep disruption to a minimum."

On this basis the Court of Appeal concluded that the judge's refusal to extend time was a decision open to him. The Court of Appeal [2001] JPL 775 dismissed the appeal and refused leave to appeal to the House of Lords.

    27. On 23 July 2000 an Appeal Committee of the House of Lords granted leave to appeal.

VII. The Principal Issues.

    28. For the purposes of the appeal to the House it must be assumed - as Richards J and the Court of Appeal had done - that Mrs Burkett has an arguable case on the substantive merits of her judicial review application. The only issues on this appeal relate to the matters of delay.

    29. Richards J and the Court of Appeal held that the three months time limit for seeking judicial review ran from the date of the resolution of 15 September 1999 and not from the date of the decision not to call in the planning application on 24 February 2000 or the decision to grant planning permission on 12 May 2000. The local authority and developer submit that the decisions below were correct as a matter of domestic law and are unaffected by European law. Mrs Burkett's primary contention is that the time limit of three months only ran against her from the date of the actual grant of planning permission. Alternatively, she contends that time only runs from the time that the Secretary of State decided not to call in the application. She relies in the first place on the proper construction of the rules of court as a matter of domestic law. But she also prays in aid the European principles of legal certainty and effective enforcement of Community law in support of her contention.

 
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