Moses, R (on the application of) v North West Leicestershire District Council & Anor

Judicial review of a planning permission must be brought with the greatest possible urgency. Under Supreme Court Act 1981, section 31(6), the court may refuse permission where delay makes relief likely to cause substantial hardship, prejudice to third-party rights, or detriment to good administration. Those safeguards apply even where the challenge alleges breach of Community environmental-assessment law. Reasonable domestic time limits remain compatible with Community law and legal certainty. A serious public-interest issue does not automatically overcome long, unexplained delay combined with substantial reliance and expenditure. Planning challenges brought more than six weeks after permission will generally be wholly exceptional. The court may also refuse late attempts to pursue alternative statutory powers where the primary challenge has failed and other powers remain available.

The applicant sought permission to bring judicial review proceedings concerning consent granted in 1994 for a 610-metre runway extension at East Midlands International Airport. The application was initially refused for delay and later for lack of standing. By the renewed application, substantial construction and related infrastructure had been undertaken, involving expenditure exceeding £67 million.

The proposed challenge alleged that the local authority had failed to obtain an environmental statement under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, implementing Directive 85/337/EEC. The applicant also challenged refusals to use statutory powers to revoke, modify or condition the consent, and sought a reference to the European Court of Justice. The central issue was whether delay, prejudice and the interests of good administration justified refusal despite the alleged environmental-law breach.

1. Application dismissed. Simon Brown LJ, with Hale LJ agreeing on the decisive ground and Staughton LJ agreeing with Simon Brown LJ's reasons, refused permission because the delay was inexcusable and relief would cause substantial hardship, prejudice and detriment to good administration.
2. Section 31(6) of the Supreme Court Act 1981 permits refusal where undue delay makes the grant of relief likely to cause substantial hardship, substantially prejudice third-party rights or be detrimental to good administration. The discretion applies at the permission stage and is available even where the alleged unlawfulness concerns Community law.
3. The relevant delay extended substantially beyond the six-week period commonly associated with challenges to planning decisions and, in substance, back to the grant of permission in 1994. Planning challenges require the greatest possible urgency. A challenge lodged after more than six weeks will ordinarily be wholly exceptional.
4. The prejudice was compelling. Developers had incurred substantial expenditure, faced possible termination and compensation claims, and would incur major demolition, disruption and operational costs if the consent were quashed. The public interest in certainty and orderly administration independently supported refusal.
5. Community law did not require the court to disregard domestic procedural safeguards. Kraaijveld v Zuid-Holland, World Wildlife Fund v Autonome Provinz Bozen and Peterbroek v Belgium did not prevent reasonable national time limits or the application of section 31(6). The prompt challenge considered in Bozen did not address delay or prejudice.
6. The court did not need to decide conclusively whether an environmental statement had been required. The statutory powers under sections 97 and 102 of the Town and Country Planning Act 1990 could not provide an alternative route after completion of the works, and the proposed amendment was in any event too late and unsupported by an adequate factual foundation. Other powers, including section 78(3) of the Civil Aviation Act 1982, remained available to address noise and safety.
7. The proposed Article 177 reference was refused. The court considered it clear that Community law could not require quashing or a late order compelling conditions on the consent.

• High Court: Collins J refused permission on 7 June 1999 for delay. Scott Baker J refused permission on 14 September 1999 after an inter partes hearing, holding that the applicant lacked sufficient interest after moving from Kegworth.
• Court of Appeal (Civil Division): The renewed application was refused. The court decided the matter on delay, prejudice and good administration and did not determine the environmental-statement issue conclusively.