Promptness in judicial review again: Broads follows Buglife

15 July 2011 by David Hart KC

U & Partners (East Anglia) Ltd, R (on the application of) v. The Broads Authority [2011] EWHC 1824 (Admin) 13 July 2011. Read judgment

I posted recently about a case, Buglife,  which affects the rule that judicial review must be commenced “promptly and in any event not later than 3 months.” Buglife decided that, contrary to a previous Court of Appeal case, Finn-Kelcey, a court could not bowl out certain claims if they were  commenced within those 3 months, even if not “promptly”. And the Broads case of this week reached the same conclusion. The key to these cases is that they involve challenging the application of a Euro-directive. 

Both Buglife and the Broads case relied on a recent decision of the CJEU, in C-406/08 Uniplex. Uniplex was a public procurement case where domestic regulations contained the promptness/3 month rule. The European Court said that a limitation period which depended on the discretion of the domestic court was “not predictable”, and therefore those UK regulations did not ensure “effective” transposition of the Directive.

Buglife was a case about environmental assessment as required by the EU EIA Directive. So is this Broads case decided by Collins J.

The Environment Agency wanted to construct a flood bank in the Norfolk Broads. The planning authority decided that the proposal did not require an environmental assessment, but in doing so made an incredibly basic error about the area of the flood bank; they thought that the bank was 1 hectare, whereas in fact it would cover 4.2 hectares. This was important for the significance or otherwise of the environmental impact of the scheme – key to whether an EIA was or was not needed under the rules.

Unsuprisingly, the judge thought this error was fatal to the grant of the planning permission in favour of the Agency. The proposal should have undergone EIA, and in its absence the grant of planning permission was unlawful.

The judge decided that by ordinary standards the application was not “prompt”. It was commenced 6 days before the expiry of the 3 month period, without warning to the Agency, and after the Agency had started work.

However, the judge said this did not matter because of the Uniplex principle. He was unpersuaded (as was the judge in Buglife) that the principle was limited to the specific public procurement directive. Any limitation period in an area involving European law (and hence the principle of “effectiveness”) could not be justified if it involved an exercise of judicial discretion, the result of which is not predictable.

So this suggests a wide scope for the Uniplex principle. Certainly any challenges alleging breaches of the EIA Directive fall within it. So too any claims arising out of breaches of other EU Directives. They all should have a minimum 3 month period for starting proceedings. This is because, in Buglife, the judge said that Uniplex applied “general and core principles of Community Law which are applicable to all directives.”  Collins J seems to have been of the same view. He was however unimpressed by the submission that any case to which the EIA Directive applied fell within the rule – even if the challenge in the case was not an EIA-based challenge.

In Buglife the judge appears to have been enthusiastic about all this. By contrast, Collins J was sceptical about Uniplex and a very similar case, Ireland, but simply felt he had no alternative but than to apply it: as he put it in [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.

As he points out, the European Court in Uniplex doubts the role of case law on limitation issues in the common law system. As he did not add, but might have done  – this is a bit rich in the circumstances given how ground-breaking (and often unpredictable) that Court has been in its own case law over the years in expanding and adapting the scope of European law principles.

The judge’s solution to the problem? Amend the rules for planning challenges by way of judicial review so that the limitation period is 6 weeks – at least everyone then knows where they stand, and this would match the 6 week period applicable to statutory planning challenges and indeed to appeals against the refusal of planning permission. Fine in theory – but it would cause endless problems for groups of objectors, not least because of the time spent putting funding arrangements in place before proceedings can be commenced.

So things seem now to have been settled. The requirement for promptness within the 3 month limitation period still runs in non-Euro cases – but in a Euro case, 3 months is the minimum period before a case can be knocked out on delay grounds.

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