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The Court of Appeal (Lewison LJ) has refused an application for permission to appeal made by the claimant in the case of Save Britain’s Heritage v City of London Corporation. The claimant (SBH) was appealing against the order of Eyre J dismissing its application for permission to bring a judicial review of planning permission issued for a major redevelopment on Fleet Street. The redevelopment is to include the demolition of existing buildings, and the construction of a new Court building, police headquarters and commercial premises.
Eyre J refused permission on the grounds of arguability and delay (the claim was issued several days late). The issue of delay is of particular interest because SBH asserted that the time for bringing its judicial review should run from the time when it was informed that the permission had been granted rather than from the date of the permission itself. SBH sought to rely on Uniplex v NHS Business Services (C-406/08) [2010] 2 CMLR 47 and R (Berky) v Newport CC [2012] Env LR 35 in which this principle has been held to potentially apply to breaches of EU law. In Berky in particular the court held that this principle may apply to grounds of challenge to planning permissions which are founded on a breach of the EIA Regulations. SBH sought to argue that this principle should apply to challenges to grants of planning permission for EIA development more generally, regardless of whether the specific ground raised any EIA point.
In his order Lewison LJ dealt with this issue as follows:
The Appellant’s argument is that because the development was EIA development, time did not begin to run until 4 August when the granted permission was sent out. R (Berky) v Newport CC does not support that argument. The argument advanced in Berky (see [12 (ii)] was that EU law governed the EIA issue and that time therefore ran from the date of notification). Both the argument, and all three judgments concentrated on the issues not on whether the development happened to be EIA development. Carnwath LJ held that different time limits could apply to EU issues and domestic issues (see [34]). At [45] Moore-Bick LJ agreed with Carnwath LJ’s reasons. He also said at [49] that Uniplex applied to challenges based on the failure to obtain an EIA; and at [50] that it applied in cases which sought to vindicate EU rights. Plainly that refers to the grounds of challenge; not simply to the question whether the development is EIA development. At [69] and [70] Sir Richard Buxton also considered the question in the context of a Community point. None of the judgments suggests that a challenge based on purely domestic considerations attracted a longer limitation period. The Appellant’s argument on this point has no real prospect of success.
Lewison LJ also went on to dismiss SBH’s substantive challenge - that paragraph 195 of the NPPF imposed a free-standing requirement to minimise conflict between a heritage asset’s conservation and any aspect of the proposal. Instead, he concluded that "it sets out the objective of the balancing exercise required by the first sentence of that paragraph and paragraph 202 of the NPPF.”
Kimberley Ziya, led by Richard Harwood QC, represented Save Britain’s Heritage.
James Maurici QC and Ben Fullbrook represented the City of London Corporation as local planning authority.
Rupert Warren QC and Anjoli Foster represented the City of London Corporation as developers.
