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Sullivan LJ refuses permission in Wightlink Ferries case

DATE: 17 Jul 2014

On 17 July 2014 Sullivan LJ refused permission to appeal in R (Lymington River Association Ltd) v Secretary of State for Communities and Local Government

The case concerns the introduction of W class ferries on a long-standing route between Lymington and Yarmouth. This was the subject of a previous judicial review (R (Akester) v Department for Environment, Food and Rural Affairs [2010] Env LR 33 per Owen J.). The Lymington Estuary is an important ecological area with European site designations.  Following the previous judicial review Wightlink made applications for planning permission for shore works at Lymington and for “recharge and habitat creation works” at Boiler Marsh. These applications were not determined by the relevant local planning authorities and an appeal was made with an inquiry held in the autumn of 2011. On 29 November 2011 an Inspector appointed by the Secretary of State allowed the appeals and granted permission having carried out an appropriate assessment under Article 6(3) the Habitats Directive. The claimant, the Lymington River Association (“the LRA”), because of a diary error on the part of its solicitors, failed to lodge a  claim under s. 288 of the Town and Country Planning Act 1990 (“the TCPA 1990”) within the 6 week time limit provided. To try and get around this the LRA requested that the Secretary of State for Communities & Local Government revoke or discontinue the permissions relying on Case C-201/02 R (Wells) v Secretary of State [2004] Env LR 27. The Secretary of State refused so to do citing, inter alia, s. 284 of the TCPA 1990 which provided that a decision such as that of the Inspector unless challenged under s. 288. The LRA sought permission to apply for judicial review of that decision. Males J. refused permission on the papers. Cranston J. refused permission following an oral renewal hearing. The LRA then appealed. Patten LJ refused permission to appeal on the papers. The LRA renewed seeking to rely on the recent decision of the European Court in Case C-521/12 Briels. Following an on notice oral renewal Sullivan LJ refused permission on the basis that: (i) the claim was statute barred under s. 284 of the TCPA 1990; and (ii) applying the Court of Appeal’s recent decision in R (Evans) v Basingstoke and Deane Borough Council, Victacress Salads Limited [2013] EWCA Civ 1635 the decision in Wells did not allow the LRA to avoid that result. 

James Maurici QC appeared for the Interested Party, Wightlink, at the hearing before Sullivan LJ (David Elvin QC and James Maurici QC have acted for Wightlink in these proceedings and at the inquiry in 2011; Rupert Warren QC and Lisa Busch have acted for the Secretary of State for Communities and Local Government in these proceedings).