High Courts considers the impact of Uniplex on the promptness requirement again

In  R(U & Partners(East Anglia) Ltd) v The Broads Authority and the Environment Agency [2011] EWHC 1824 (Admin) the High Court has again considered the impact of Uniplex on the promptness requirement in judicial review: Please click here for more information.

In that case Collins J. was satisfied that the claim was not brought promptly but nonetheless granted permission.

The learned Judge considered Uniplex and Commission of the European Communities v Ireland [2010] PTSR 1403. The learned Judge said:

“44.        It was suggested that Uniplex  and Ireland were limited to Directive 89/665.  As the citations from those cases show, this limitation cannot be justified.  The Court was making the point that the principle of effectiveness was breached by a limitation provision which lacked certainty and so such a provision could not represent a proper transposition of a Directive which required that a person who claimed that action adversely affecting him was in breach of the Directive could take proceedings to challenge it.  That was the conclusion reached by HH Judge Thornton Q.C. in R(Buglife) v Medway Council [2011] EWHC 746 (Admin): see paragraph 63 of his judgment.  Miss Busch unsurprisingly did not feel able to put forward any submissions to the contrary.

45.          I am far from persuaded that the Court’s decisions are satisfactory.  It said that it had put before it arguments based on the importance of case law in the common law system.  The judge’s discretion is not exercised arbitrarily and Finn-Kelcey makes the position clear.  But the court seems to have thought that any possibility of the exercise of discretion by a judge contravened the principle of effectiveness.  With hindsight, it is unfortunate that Laws J’s attempt to limit the time within which a claim should be brought so as not to fall foul of promptness to six weeks was disapproved by the House of Lords.  Having regard to the importance of promptness in challenging grants of planning permission, serious consideration should in my view be given to amending CPR 54.5 so as to impose a six week limit for all such challenges.

46.          Mr Jones argued that in any case to which the Directive 85/337 applied the Uniplex approach should prevail even if there was compliance with the Directive but a challenge was made on other grounds.  That argument I reject.  Apart from anything else, it would be contrary to the decision in Finn-Kelcey and to the provisions of CPR 54.5.

47.          I would only add that the EA cannot rely on s.31(6) of the Senior Court Act 1981 since it only applies if there has been undue delay.  If the claim was brought within the three month period which, following Uniplex, must be permitted, there is no undue delay.

48.          I therefore cannot refuse permission on the ground that the claim was not brought promptly nor can I apply s.31(6) in the EA’s favour.  Thus the planning permission must be quashed.”

The conclusion that Uniplex disapplies s. 31(6) of the Senior Court Act 1981 (“the 1981 Act”) seems wrong to me. In R v Dairy Produce Quota Tribunal for England and Wales, ex parte Caswell [1990] 2 A.C. 738, the House of Lords considered with relationship between s.31(6) SCA 1981 and RSC Order 53, rule 4 (now CPR 54.5). Lord Goff held that s.31(6): “does not limit ‘the time within which an application for judicial review may be made (the words used in rule 4(3)). Section 31(6) simply contains particular grounds for refusing leave or substantive relief, not referred to in rule 4(1) [or CPR 54], to which the court is bound to give effect, independently of any rule of court”. This is strongly supported by the speeches of the House of Lords in R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 W.L.R. 1593. In that case some of their Lordships anticipated (pre Uniplex) that the promptness requirement might fall foul of EU law but all considered the discretion not to quash to remain a valid part of domestic law: see in particular the references to the position in Scotland and the doctrine of mora. On this analysis of s. 31(6) it involves no infringement of the principle in Uniplex. The SCA 1981 provides a judicial discretion to refuse permission or relief “if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration”.