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Important case on Delay in Planning Challenges

DATE: 23 Feb 2016

The Court of Appeal today gave judgment in R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and Norrington Solar Farm Ltd [2016] EWCA Civ 84, allowing the appeals of the Council and developers.

The High Court (Dove J) had granted an extension of time for the challenge and quashed the decision of the local planning authority to grant planning permission for a 22 hectare solar farm at Broughton Gifford, Wiltshire. The appeal concerned the approach to delay in planning cases.

The Council had complied with the legislative requirements as to publicity of the planning application and granted planning permission in June 2013. However, the Claimant, the owner of Gifford Hall, a Grade II* listed building close to the site, did not find out about the permission until March 2014. He was advised by planning solicitors, who wrote to the LPA in April 2014 making a complaint, but stating that no claim for judicial review would be brought. He later changed solicitors who brought a claim in August 2014.

In February 2014, substantially after the ordinary time limit for bringing a judicial review claim, and with no claim brought or threatened, the developers had acquired their interest in the site. They built out the solar farm, and it was producing electricity before the claim was made.

Dove J granted an extension of time to bring the claim. He held that there was a legitimate expectation that Mr Gerber would be notified of the application (deriving from the LPA's Statement of Community Involvement ("SCI")). He further held that the LPA unlawfully failed to consult English Heritage, and had not complied with its duty under s. 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Finally, there had not been a satisfactory EIA screening opinion. Notwithstanding the significant financial prejudice to the developers, the Judge quashed the permission.

The LPA and developers appealed against the Judge's decision on the legitimate expectation and as regards his decision to quash. The appeal succeeded on all grounds.

The Court of Appeal (Lord Dyson MR; Tomlinson LJ and Sales LJ) held that Dove J had erred in the following respects:

  • There was no legitimate expectation on Mr Gerber's part to be notified of the planning application on a proper interpretation of the SCI, as Mr Gerber's property did not adjoin the development site;
  • There was no reasonable explanation for the delay between June 2013 and March 2014, when Mr Gerber found out about the planning permission, as there had been no legitimate expectation and Mr Gerber was therefore in the same position as any other member of the public;
  • There was no reasonable explanation for the delay following March. Mr Gerber had made a decision not to pursue a judicial review claim, having been advised by planning solicitors. The Judge gave inappropriate weight as a matter of principle to the fact that Mr Gerber was acting on legal advice. Whether or not the advice received was wrong, it would not be right to allow the content of advice received to allow a further period of delay;
  • In any event, the advice received was not incomplete or inaccurate as regards the material question of delay;
  • The Judge was therefore wrong to extend time to bring the claim;
  • The way the Judge dealt with the question of "good administration" in relation to s. 31(6) Senior Courts Act 1981 was difficult to follow;
  • Reliance on Carnwath LJ's statement in the Tata Steel case that a quashing order was the normal remedy was misplaced. It was made in a materially different context, namely one where the issue of delay was not in play;
  • If the Court of Appeal had been called upon to make a fresh decision as to the exercise of discretion, it would have exercised its discretion to refuse a quashing order in the circumstances, the principal reasons being: (i) the long delay with no good excuse, (ii) the major financial detriment to the developers if the permission were quashed, (iii) the less significant damage to Mr Gerber's own interests, and (iv) good administration. The last of these factors included consideration of the need for renewable energy, and the need for certainty and reliability in this area, especially where such schemes are likely to be dependant on attracting significant investment in capital markets. The context was one in which the need for finality was particularly strong. The Court did not attach great weight to breaches of condition by the developers, as the LPA could enforce in future to the extent to which it is expedient.

Sales LJ (With whom the rest of the Court agreed) said as follows at [49]:

 "In my judgment, where proper notice of an application for planning permission has been given pursuant to the 2010 Order it is not appropriate to extend time for bringing a legal challenge to the grant of such permission simply because an objector did not notice what was happening. Extending time in such a case so that a legal objection could be mounted by someone who happened to remain unaware of what was going on until many months later would unfairly prejudice the interests of a developer who wishes to rely upon a planning permission which appears to have been lawfully granted for the development of his land and who has prudently waited for a period before commencing work to implement the permission to ensure that no legal challenge is likely to be forthcoming, as happened here. Prompt legal action after grant of a planning permission to challenge its lawfulness will be required in all cases, unless very special reasons can be shown of a kind which are wholly absent in this case. Especial speed will be expected in the case of objectors who have been involved in the planning process throughout, as emphasised by Keene LJ in Finn-Kelcey at [24], but it does not follow that the strong requirement of prompt action will be substantially relaxed in the case of someone who, despite a planning authority’s compliance with the notification rules laid down in law, remained in ignorance."

 And at [53]:

 "The fact that a person acts (or omits to act) on the basis of legal advice does not make him less responsible in law for his actions (or omissions to act). Legal advice helps him to decide what to do, but in most contexts it is still his decision and his actions (or omissions) which determine how his rights and liabilities in relation to another person should be adjusted. This approach is underwritten by important practical considerations of particular force in the planning context...

Other than in exceptional circumstances where other factors are also in play, therefore, I consider it is wrong in principle for the court to exercise its discretion to extend time to bring judicial review proceedings in the planning context by reference to legal advice which an objector might have received. I agree with the observation of Stadlen J in Melton v Uttlesford District Council [2009] EWHC 2845 at [50] that “A change of legal representation and/or a change of opinion on law and/or tactics is unlikely to pass the test” for allowing an extension of time under CPR Part 54.5; indeed, the position can be stated still more strongly than this, as I have sought to do."

Mr Gerber has sought permission to appeal to the Supreme Court.

David Forsdick QC and Jonathan Wills acted for the First Appellant, Wiltshire Council

Richard Drabble QC and Jonathan Wills acted for the Second Appellants, Terraform Power Inc and Norrington Solar Farm Ltd.

Jonathan Wills acted for Wiltshire Council, Terraform Power Inc and Norrington Solar Farm Ltd in the High Court.