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

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    30. It will be convenient first to consider the principal issue of the interpretation of the rules of court under domestic law. In my view oral argument convincingly showed that the real choice is between holding that under RSC Ord 53, r 4(1), the grounds for the application first arose on (a) the date of the resolution or (b) the date of the actual grant of planning permission, the latter being the first date by which rights and obligations were created. The date when the Secretary of State decided not to call in the application has little to commend it as the operative date. So far as finality is relevant, that date left the planning decision in suspense. I will therefore concentrate on what I regard as the real choice before the House.

VIII. A Procedural Point.

    31. Richards J and the Court of Appeal regarded it as a serious obstacle that the application for judicial review was directed against the resolution of 15 September 1999. That was the case because the application had been made before the grant of permission. If this is an insuperable obstacle, the important points of law involved in this appeal would have to await decision in another case. In my view this difficulty can be overcome. In public law the emphasis should be on substance rather than form. If the correct construction of the rules is that in respect of a challenge to planning permission time only runs from the date of the grant of permission, it would be unjust to dismiss the appeal on this ground. Counsel for Mrs Burkett put forward a suitable amendment directed to the grant of permission on 12 May 2000. In my view there is no reason why such an amendment, and any other consequential amendments, cannot be granted. In this way any procedural difficulty can be cured. It is therefore possible to put this technical point to one side and to concentrate on the legal issues before the House.

IX. The Status of the Resolution

    32. The resolution of 15 September 1999 gave authority to a designated council official to grant planning permission subject to (i) there being no call in decision by the Secretary of State and (ii) completion of a satisfactory agreement enforceable pursuant to section 106 of the 1990 Act. There were therefore two conditions precedent to a binding planning permission coming into existence. It is common ground that the resolution by itself created no legal rights. Only upon the fulfilment of both conditions precedent, and the grant of planning permission, did rights and obligations as between the local authority, the developer and affected individuals come into existence. Until all these things had happened the resolution was revocable not by the designated official but by the local authority itself.

    33. The first condition precedent was fulfilled on 24 February 2000 when the Secretary of State decided not to call in the application. The second condition was fulfilled on 12 May 2000 when the section 106 agreement was concluded. Only on that date was it possible to grant planning permission giving rise to rights and obligations. It is this second condition which requires some further explanation.

    34. The resolution of 15 September 1999 was adopted by the committee against the background of a supplementary agenda which informed members:

    "Critical to the assessment of this application is the proposed 106 agreement which needs to be understood as part of the overall proposal. Without this proposal this proposal would be wholly unacceptable".

The proposal for which members of the committee voted on 15 September 1999 was therefore inchoate. It would be wrong to assume that the negotiation and conclusion of the agreement of the section 106 agreement was a formality. It was only completed eight months after the initial resolution, and three months after the Secretary of State's decision not to call in the application. It was a complex agreement running to about 190 pages. Some of the provisions were apparently in planning terms of major importance. While the House has not examined the agreement, counsel for Mrs Burkett pointed out that it included provisions regarding highway improvements, work on a roundabout nearby, the provision of 60 units of housing for a social landlord, and other material provisions. I did not understand this to be a matter of dispute.

    35. The position is therefore that until 12 May 2000 it was uncertain whether the resolution of 15 September 1999 would be implemented.

X. The Interpretation and Application of the Rules of Court

    36. I have already drawn attention to the provisions of section 31(6) of the 1981 Act. Nobody has suggested that the outcome of the appeal in the present case can be affected by section 31(6). The debate has centred on the correct interpretation and application of the rules of court. That is how I will approach the matter. There is no material difference between the provisions of RSC Ord 53, r 4(1) and CPR r 54.5(1). I will address the language of the former.

    37. The case was decided by the Court of Appeal not on the ground of a lack of promptitude in making the judicial review application but on the ground that more than three months had elapsed after the resolution of 15 September 1999. Whether that is the correct date depends on the interpretation and application of the words "from the date when the grounds for the application first arose". If in respect of a challenge to the actual grant of permission time runs (to use convenient shorthand for the statutory words) from the date of the resolution, the decisions below were correct. On the other hand, if in respect of a challenge to the actual grant of permission time runs from the date of the grant, the decisions below were wrong. This is the critical issue. In considering this question one must bear in mind that RSC Ord 53, r 4(1) (and for that matter CPR r 54.5(1)) are not specifically targeted at town planning applications. These provisions apply across the spectrum of judicial review applications. Making due allowance for the special features of town planning applications, an interpretation is to be preferred which is capable of applying to the generality of cases.

    38. Leaving to one side for the moment the application of Ord 53, r 4(1) on the running of time against a judicial review applicant, it can readily be accepted that for substantive judicial review purposes the decision challenged does not have to be absolutely final. In a context where there is a statutory procedure involving preliminary decisions leading to a final decision affecting legal rights, judicial review may lie against a preliminary decision not affecting legal rights. Town planning provides a classic case of this flexibility. Thus it is in principle possible to apply for judicial review in respect of a resolution to grant outline permission and for prohibition even in advance of it: see generally Wade & Forsyth, Administrative Laws, 8th ed, p 600; Craig, Administrative Law, 4th ed, pp 724-725; Fordham, Judicial Review Handbook, 3rd ed (2001), para 4.8.2. It is clear therefore that if Mrs Burkett had acted in time, she could have challenged the resolution. These propositions do not, however, solve the concrete problem before the House which is whether in respect of a challenge to a final planning decision time runs under Ord 53, r 4(1) from the date of the resolution or from the date of the grant of planning permission. It does not follow from the fact if Mrs Burkett had acted in time and challenged the resolution that she could not have waited until planning permission was granted and then challenged the grant.

    39. As a matter of language it is possible to say in respect of a challenge to an alleged unlawful aspect of the grant of planning permission that "grounds for the application first arose" when the decision was made. The ground for challenging the resolution is that it is a decision to do an unlawful act in the future; the ground for challenging the actual grant is that an unlawful act has taken place. And the fact that the element of unlawfulness was already foreseeable at earlier stages in the planning process does not detract from this natural and obvious meaning. The context supports this interpretation. Until the actual grant of planning permission the resolution has no legal effect. It is unlawful for the developer to commence any works in reliance on the resolution. And a developer expends money on the project before planning permission is granted at his own risk. The resolution may come to nothing because of a change of circumstances. It may fall to the ground because of conditions which are not fulfilled. It may lapse because negotiations for the conclusion of a section 106 agreement break down. After the resolution is adopted the local authority may come under a duty to reconsider its decision if flaws are brought to its attention: R v West Oxfordshire District Council, Ex p C H Pearce Homes Ltd (1986) 26 RVR 156. Moreover, it is not in doubt that a local authority may in its discretion revoke an outline resolution. In the search for the best contextual interpretation these factors tend to suggest that the date of the resolution does not trigger the three-month time limit in respect of a challenge to the actual grant of planning permission.

    40. The contrary argument is that it is disruptive of good administration for a citizen to delay his application until the actual grant of planning permission. This is the view which Richards J and the Court of Appeal adopted. It was also a view forcefully expressed by Laws J in the Divisional Court in R v Secretary of State for Trade and Industry, Ex p Greenpeace Ltd [1998] Env LR 415. In the context of a challenge to the award of North Sea licences he said, at p 424:

    "a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If, after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late …"

This observation was cited with approval by Richards J and the Court of Appeal adopted this reasoning. It is necessary to point out, however, that the judge in the Greenpeace case based his decision not only on the rules of court but also on broader considerations of his view of the function of the court in upholding the rule of law: see at p 422.

    41. The decision in the Greenpeace case was subsequently followed in a number of lower court decisions. There were also decisions to a contrary effect and there are cases where the court treated time as running from the date of the actual grant of planning permission without any examination of the issue. There is some discussion of such cases in two articles: Jones and Phillpot, "When He Who Hesitates is Lost: Judicial Review of Planning Permissions" [2000] JPL 564 and Roots and Walton, "Promptness and Delay in Judicial Review - an update on the continuing saga" [2001] JPL 1360. These cases involve judgments on applications for permission to apply for judicial review. Such cases are generally not regarded as authoritative: see Clark v University of Linconshire and Humberside [2000] 1 WLR 1988, 1998-1999 paras 40-43, per Lord Woolf MR. For my part the earlier decisions, other than the important judgment of Laws J in the Greenpeace case, can be regarded as overtaken by the Court of Appeal decision in the present case. It is therefore on the reasoning in the Greenpeace case and in the Court of Appeal judgment that I must concentrate.

    42. The core of the reasoning of the Court of Appeal is that "the impugned environmental impact statement was as necessary to the resolution as to any subsequent steps [and] the logic of measuring time from the resolution seems inescapable". In my view there is no such inevitable march of legal logic. In law the resolution is not a juristic act giving rise to rights and obligations. It is not inevitable that it will ripen into an actual grant of planning permission. In these circumstances it would be curious if, when the actual grant of planning permission is challenged, a court could insist by retrospective judgment that the applicant ought to have moved earlier for judicial review against a preliminary decision "which is the real basis of his complaint" (the Greenpeace case, at p 424). Moreover, an application to declare a resolution unlawful might arguably be premature and be objected to on this ground. And in strict law it could be dismissed. The Court of Appeal was alive to this difficulty and observed that "an arguably premature application can often be stayed or adjourned to await events". This is hardly a satisfactory explanation for placing a burden on a citizen to apply for relief in respect of a resolution which is still devoid of legal effect. For my part the substantive position is straightforward. The court has jurisdiction to entertain an application by a citizen for judicial review in respect of a resolution before or after its adoption. But it is a jump in legal logic to say that he must apply for such relief in respect of the resolution on pain of losing his right to judicial review of the actual grant of planning permission which does affect his rights. Such a view would also be in tension with the established principle that judicial review is a remedy of last resort.

    43. At this stage it is necessary to return to the point that the rule of court applies across the board to judicial review applications. If a decision-maker indicates that, subject to hearing further representations, he is provisionally minded to make a decision adverse to a citizen, is it to be said that time runs against the citizen from the moment of the provisional expression of view? That would plainly not be sensible and would involve waste of time and money. Let me give a more concrete example. A licensing authority expresses a provisional view that a licence should be cancelled but indicates a willingness to hear further argument. The citizen contends that the proposed decision would be unlawful. Surely, a court might as a matter of discretion take the view that it would be premature to apply for judicial review as soon as the provisional decision is announced. And it would certainly be contrary to principle to require the citizen to take such premature legal action. In my view the time limit under the rules of court would not run from the date of such preliminary decisions in respect of a challenge of the actual decision. If that is so, one is entitled to ask: what is the qualitative difference in town planning? There is, after all, nothing to indicate that, in regard to RSC Ord 53, r 4(1), town planning is an island on its own.

    44. In R v Secretary of State for Trade and Industry, Ex p Greenpeace Ltd [1998] Env LR 415 and in the Court of Appeal in the present case the view was taken that the selection of the date of the resolution as the appropriate date would facilitate good administration. There are two sides to this proposition. It contemplates time running against a citizen before his rights are affected, thereby potentially involving a loss of a right to challenge what may perhaps be an abuse of power which in the interests of good administration should be exposed. Undoubtedly, there is a need for public bodies to have certainty as to the legal validity of their actions. That is the rationale of Ord 53, r 4(1). On the other hand, it is far from clear that the selection of the actual grant of planning permission as the critical date would disadvantage developers and local authorities. In their careful article Jones and Phillpot, "When He Who Hesitates is Lost: Judicial Review of Planning Permissions" [2000] JPL 564, 588 argue:

    "There would be a greater incentive for both the planning authority and the developer to move to ensure that the formal grant of planning permission is issued more speedily. This could be of advantage to developers wishing to progress the development of the site. From a public policy point of view it is important that speedy progress is made to issue the formal planning permissions for appropriate development."

For my part the arguments in favour of time running from the date of resolution in the present case have been given undue weight by the Court of Appeal. In any event, there are a number of countervailing policy considerations to be considered.

    45. First, the context is a rule of court which by operation of a time limit may deprive a citizen of the right to challenge an undoubted abuse of power. And such a challenge may involve not only individual rights but also community interests, as in environmental cases. This is a contextual matter relevant to the interpretation of the rule of court. It weighs in favour of a clear and straightforward interpretation which will yield a readily ascertainable starting date. Entrusting judges with a broad discretionary task of retrospectively assessing when the complaint could first reasonably have been made (as a prelude to deciding whether the application is time barred) is antithetical to the context of a time limit barring judicial review.

    46. Secondly, legal policy favours simplicity and certainty rather than complexity and uncertainty. In the interpretation of legislation this factor is a commonplace consideration. In choosing between competing constructions a court may presume, in the absence of contrary indications, that the legislature intended to legislate for a certain and predictable regime. Much will depend on the context. In procedural legislation, primary or subordinate, it must be a primary factor in the interpretative process, notably where the application of the procedural regime may result in the loss of fundamental rights to challenge an unlawful exercise of power. The citizen must know where he stands. And so must the local authority and the developer. For my part this approach is so firmly anchored in domestic law that it is unnecessary, in this case, to seek to reinforce it by reference to the European principle of legal certainty.

    47. Unfortunately, the judgment in the Greenpeace case and the judgment of the Court of Appeal, although carefully reasoned, do not produce certainty. On the contrary, the proposition in the Greenpeace case, at p 424, "that a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint" leaves the moment at which time starts to run uncertain. This is illustrated by the way in which Laws J in a lengthy judgment proceeded retrospectively to assess the various dates by which the applicants could have applied for judicial review. In a case note published in [1998] JR 8 on the Greenpeace case, "All Litigants are Not Equal: Delay and the Public Interest Litigant" Dr Forsyth (co-author of the standard text book) commented, at p 10, para 8:

    "This obligation resting upon applicants to apply for judicial review as soon as the real basis of their complaint had been identified is onerous and uncertain. It may be pointed out that notwithstanding that he had the luxury of being able to view each event in its proper context as revealed by subsequent events, the judge found it difficult to decide what the precise date was. How much more difficult must it be for the applicant who lacks this perspective and to whom the significance of each event is obscure to judge when the real basis of their complaint has come to the fore? In truth, the basis of a complaint is often constructed ex post facto, but the judgment ignores this reality."

Laws J saw it as a matter of the court imposing "a strict discipline in proceedings before it" and administering justice "case by case". The difficulty with this approach is, however, that it does not provide the relative certainty in respect of the operation of the time limit under Ord 53, r 4(1), which a citizen might be entitled to expect.

    48. While I must avoid distraction from the main point, it is of passing interest that the sequel to the Greenpeace case as decided by Laws J was a decision by Maurice Kay J in the same ongoing dispute in which a rather different approach on a number of public law points prevailed: R v Secretary of State for Trade and Industry, Ex p Greenpeace Ltd [2000] Env LR 221.

    49. There is appended to the appellant's printed case a list of dates which on the Court of Appeal judgment may be held to be the operative dates even where the challenge is to the grant of planning permission. For my part I would not necessarily be willing to accept the realism of all the suggested dates. But on the reasoning of the Court of Appeal and the arguments of the respondents dates earlier than the resolution (e g a recommendation to the planning committee) may in future have to be treated as operative dates. Indeed, on the rationale of the Court of Appeal judgment, and the argument for the respondents, time could start to run when a planning authority, before the adoption of any resolution, accepted a deficient environmental statement and placed it on the register pursuant to regulation 14(2) of the 1988 Regulations. Almost certainly there will be other potential dates even where the challenge is to the final decisions. Not surprisingly, the practice in the Divisional Court has been inconsistent. There has been criticism in professional journals of the failure of the Court of Appeal in the present case to bring a measure of certainty to this corner of the law: Edwards and Martin, Time gentleman, please, (2001) Estates Gazette, No 0103, 20 January 2001, p 128; comment on the Court of Appeal decision by Edwards, [2001] JPL 775, 785-786; Roots and Walton, "Promptness and Delay in Judicial Review - an update on the continuing saga" [2001] JPL 1360; compare also the earlier article of Jones and Phillpot, "When He Who Hesitates is Lost: Judicial Review of Planning Permissions", [2000] JPL 564. At present there now appears to be a confusing number of different potential starting points. They involve the court retrospectively assessing when it was reasonable for an individual to apply for judicial review. The lack of certainty is a recipe for sterile procedural disputes and unjust results. By contrast if the better interpretation is that time only runs under Ord 53, r 4(1), from the grant of permission the procedural regime will be certain and everybody will know where they stand.

    50. Thirdly, the preparation of a judicial review application, particularly in a town planning matter, is a burdensome task. There is a duty of full and frank disclosure on the applicant: 053/14/57 to RSC Ord 53, r 14. The applicant must present to the court a detailed statement of his grounds, his evidence, his supporting documents in a paginated and indexed bundle, a list of essential reading with relevant passages sidelined, and his legislative sources in a paginated indexed bundle. This is a heavy burden on individuals and, where legal aid is sought, the Legal Services Commission. The Civil Procedure Rules and Practice Direction - Judicial Review Supplementing Part 54 contain similar provisions: see also the Pre-Action Protocol for Judicial Review. An applicant is at risk of having to pay substantial costs which may, for example, result in the loss of his home. These considerations reinforce the view that it is unreasonable to require an applicant to apply for judicial review when the resolution may never take effect. They further reinforce the view that it is unfair to subject a judicial review applicant to the uncertainty of a retrospective decision by a judge as to the date of the triggering of the time limit under the rules of court.

    51. For all these reasons I am satisfied that the words "from the date when the grounds for the application first arose" refer to the date when the planning permission was granted. In the case before the House time did not run therefore from the resolution of 15 September 1999 but only from the grant of planning permission on 12 May 2000. It follows that in my view the decisions of Richards J and the Court of Appeal were not correct.

XI. The European Law Issues.

    52. Given the conclusion I have reached it is unnecessary in this case to consider the arguments on European law. And there is no need for a reference to the European Court of Justice pursuant to article 234 of the EC Treaty (OJ 1992 C 224, p 6).

XII Promptitude

    53. This case has not turned on the obligation of a judicial review applicant to act "promptly" under the rules. In these circumstances I confine my observations on this aspect to two brief matters. First, from observations of Laws J in R v Ceredigion County Council, Ex p McKeown [1998] 2 PLR1 the inference has sometimes been drawn that the three months limit has by judicial decision been replaced by a "six weeks rule". This is a misconception. The legislative three months limit cannot be contracted by a judicial policy decision. Secondly, there is at the very least doubt whether the obligation to apply "promptly" is sufficiently certain to comply with European Community law and the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969). It is a matter for consideration whether the requirement of promptitude, read with the three months limit, is not productive of unnecessary uncertainty and practical difficulty. Moreover, Craig, Administrative Law, 4th ed, has pointed out, at p 794:

    "The short time limits may, in a paradoxical sense, increase the amount of litigation against the administration. An individual who believes that the public body has acted ultra vires now has the strongest incentive to seek a judicial resolution of the matter immediately, as opposed to attempting a negotiated solution, quite simply because if the individual forbears from suing he or she may be deemed not to have applied promptly or within the three month time limit"

And in regard to truly urgent cases the court would in any event in its ultimate discretion or under section 31(6) of the 1981 Act be able to refuse relief where it is appropriate to do so: see Craig, Administrative Law, 4th ed, 794. The burden in such cases to act quickly would always be on the applicant: see Jones and Phillpot, "He Who Hesitates is Lost: Judicial Review of Planning Permissions" [2000] JPL 564, at 589.

XIII. Disposal.

    54. For these reasons, as well as the reasons given by my noble and learned friend Lord Slynn of Hadley, I would allow the appeal and remit the matter for decision by the High Court on the substantive issues.

LORD HOPE OF CRAIGHEAD

My Lords,

    55. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. Subject only to some observations which I should like to add to what he has said on the questions of jurisdiction and promptitude, I agree with it. I too would allow the appeal.

Jurisdiction

    56. In my opinion the principle upon which the decision of this House in Lane v Esdaile [1891] AC 210 proceeded was correctly identified by Lord Esher MR in In re Housing of the Working Classes Act 1890, Ex p Stevenson [1892] 1 QB 609, 611 when he said:

    "I am, on principle and on consideration of the authorities that have been cited, prepared to lay down the proposition that, wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature of the thing, final and conclusive and without appeal, unless an appeal from it is expressly given. So, if the decision in this case is to be taken to be that of the judge at chambers, he is the legal authority to decide the matter, and his decision is final; if it is to be taken to be that of the High Court, then they are the legal authority entrusted with the responsibility of deciding whether there shall be leave to appeal, and their decision is final. In either case there is no appeal to this court. What was said in Lane v Esdaile [1891] AC 210 supports the view that I am taking."

 
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