Just how long is a piece of string? Judicial Review in Planning Decisions. The six week time frame for challenging a planning decision by way of judicial review is often treated as being set in stone. Developers, LPAs, consultants and lawyers often breathe a sigh of relief once the six week time period has crept past, feeling able to press on with implementing the consent without risk of challenge.
Recent caselaw has given many pause for thought on this point, but are the courts really threatening the six week orthodoxy? Has the certainty that the shorter six week challenge period was intended to provide been diluted?
The recent Court of Appeal consideration of the Thornton Hall case suggests perhaps not, even though it nominally supported a judicial review some five years after the date of grant of permission.
The factual position in Thornton Hall (which turned on an application by a country house hotel for temporary planning permission for the erection of marquees for the hosting of weddings and other events) was littered with peculiarities: A decision notice which not only deviated from the committee resolution, but also draft decision notices which had been made public and included within the S106 agreement. Not just a change in conditions from those included within the resolution to grant, but a complete absence of conditions altogether. A permission which at its heart was intended to be time limited granted on a permanent basis. An applicant who was well aware of the defects in the permission but chose not to address the matter. An LPA who chose not to exercise its own powers to seek the quashing of the defective permission, but instead chose to support the challenge of a third party.
At its heart, therefore, Thornton Hall represented a unique position for the court – the facts were such that it would make a mockery of the probity of the planning system to allow the permission to stand, even where a time measured in years, rather than weeks, had passed.
The Court of Appeal focused in particular on two of these factual points:
a) The nature of the permission applied for was intended to be time limited. The permission in fact granted dispensed with this, resulting in the grant of a planning permission that was fundamentally at odds with what the LPA’s planning committee had resolved to grant; and
b) The applicant was well aware of the error, but chose not to raise it (perhaps considering it had been handed a real-life ‘bank error in your favour’ card ).
It is perhaps the final line of the Court of Appeal judgment that should weigh most heavily in the minds of those waiting out a JR period:
“Here the circumstances are most exceptional. They are wholly extraordinary. This is case where it can truly be said that the exception proves the rule”
Clearly the courts will not take any extension of a well-established deadline lightly – the particular facts in Thornton Hall came together in such a way that it would have been bordering on nonsensical not to use the courts’ considerable discretion to allow a challenge to be brought.
That discretion arises from the fact that, in the case of planning judicial reviews, the time frames are set by the court’s own Civil Procedure Rules. Rule 54 provides that planning challenges are subject to a six week deadline , but Rule 3.1(2)(a) provides an overarching flexibility that the court is empowered to:
“(a) extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)”
Whilst the court has this considerable flexibility in applying its own rules, it is perhaps telling (as the Court of Appeal noted) that in the context of planning judicial reviews this is very much the exception, rather than the rule, and rarely will the court consider that the facts of a case warrant departure from the six week norm.
In addition, the courts do have the benefit of the Senior Courts Act 1981, which gives a similarly broad discretion to refuse permission for judicial review, or refuse to grant any relief, in cases of ‘undue delay’, and where it would cause substantial hardship or substantially prejudice those affected.
Fundamentally, it remains the case that it will take exceptional circumstances to warrant a departure from the usual six week rule, and the courts will be mindful of the underlying reason for foreshortening that period in the case of planning challenges – certainty.
Of course, every case will turn on its particular factual circumstances, but absent exceptional circumstances, it remains business as usual.