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Important Court of Appeal decision on Uniplex and delay in planning cases

DATE: 29 Mar 2012

The Court of Appeal today gave judgment in R (Berky) v Newport City Council.

The case concerned a challenge to a planning permission granted on 26 January 2011 and in which judicial review proceedings were not lodged until 26 April 2011. HHJ Cooke had refused permission to apply for judicial review on the substantive merits and on the basis of delay.

The Appellant alleged, inter alia, a failure to give adequate reasons for the EIA screening opinion. The Court of Appeal rejected this challenge holding that while the reasons were “terse” it was to be inferred that the Council had adopted the reasons for not requiring EIA set out in the applicant’s detailed request for the screening opinion. The case is thus the latest of a long line of Court of Appeal cases on the adequacy of screening opinion reasons: see e.g. R (Bateman) v South Cambridgeshire District Council [2011] EWCA 157 and R (Wye Valley Action Association Limited) v Herefordshire Council [2011] Env. L.R. 20.

One of the other grounds was an allegation of /pre-determination  against a single councillor. The Court of Appeal rejected this challenge and also indicated that given that the decision of the committee was 8:1 any bias/pre-determination by a single member could not vitiate the decision and they disapproved of the dictum of Ouseley J. in Bovis v New Forest DC [2002] EWHC 483 (Admin) at para 103 on this point.

The Court of Appeal ruled that the 3 month period in CPR 54.5(1) starts on the day following the decision challenged: this is a different approach to that previously, see: Crichton v Wellingborough BC [2004] Env LR 11 at para. 56 and R (Hardy) v Pembrokeshire [2006] Env. L.R. 16 at para. 46 and [2006] Env. L.R. 28 in the Court of Appeal at para. 8. They also ruled that where the last day of the 3 month period is a bank holiday it is disregarded for the purposes of calculating if the claim is in time, so that a claim lodged the following day would be in time.

What is of greater interest is the discussion of delay following Uniplex. All 3 Judges took a different view on the Uniplex delay issues. The whole discussion was obiter but is still of importance.

Prior to this case there were High Court decisions going either way on whether Uniplex applied to planning cases: see R (Pampisford Estate Farms Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 131 (Admin);  R (Carroll) v Westminster City Council & Anr [2010] EWHC 2019 (Admin);  R (on the application of Buglife –the Invertebrate Conservation Trust) v Medway Council [2011] 3 C.M.L.R. 39 and  R (U & Partners (East Anglia) Ltd) v The Broads Authority and the Environment Agency [2011] JPL 1583.

  • Carnwath LJ was of the view that:
    - Uniplex probably did apply to planning cases but considered the position sufficiently uncertain that he would have made a reference had the case turned on delay;
    - if Uniplex applied it would not have affected the promptness requirement in respect of the domestic law grounds in the case only the EIA ground;
    - contrary to what was said by Collins J. in U & Partners, assuming Uniplex applied, it was concerned only with the time allowed for commencing proceedings and did not affect the Court’s power to withhold remedies under s. 31(6) of the Senior Courts  Act 1981.
  • Moore-Bick LJ and Sir Richard Buxton by contrast considered that assuming Uniplex applied in planning cases it did also apply to s. 31(6).
  • Sir Richard Buxton though thought that the application of Uniplex to planning cases merited reconsideration and that had delay been the determinative issue he would have made a reference.
  • Sir Richard Buxton also said that assuming Uniplex applies to planning then it disapplies the time limits in respect of all the grounds domestic and European so long as one of the grounds raised was an EU point and not “plainly unarguable”.

James Maurici appeared for Morrisons, the First Interested Party (led by Michael Fordham QC) instructed by Gordons LLP.