In the Matter of an Application by Robert and Sonia Burkett for Permission to Apply for Judicial Review

For judicial review of a planning decision, time ordinarily begins when the impugned resolution is passed, not when a later formal permission is granted or a call-in decision is made, where the same objection applies throughout the process. An applicant may reasonably await an alternative remedy, such as a Secretary of State call-in, but must explain the delay and should give clear warning of a prospective challenge. The three-month limit and the requirement to act promptly remain distinct. A six-week period is a useful touchstone in planning cases, not a fixed substitute for the statutory period. Prejudice, expenditure and good administration are relevant considerations, but they do not operate as freestanding grounds where the rules and the facts provide the governing answer.

The applicants lived beside a contaminated redevelopment site at Imperial Wharf. They sought judicial review of a resolution by the London Borough of Hammersmith and Fulham authorising the grant of outline planning permission. Their grounds concerned the adequacy of the environmental statement, mitigation measures and publicity.

The resolution was passed on 15 September 1999. The Secretary of State declined to call in the application on 24 February 2000. The applicants sent a letter before action on 28 March and issued their application on 6 April. Richards J refused permission because of delay, accepting that the proposed grounds were arguable. The Court of Appeal granted permission to appeal on the issue of delay and considered when time began, whether the delay justified an extension, and the relevance of promptness, prejudice and good administration.

The Court of Appeal dismissed the appeal. There was no error of law or principle in Richards J’s refusal of permission.

1. Starting point. Under Order 53 rule 4(1) of the Rules of the Supreme Court, time began when the local authority passed the resolution, because the environmental objection affected both the resolution and the eventual grant. The fact that the later grant remained conditional did not postpone the date on which the grounds first arose. The same approach applies under Part 54 of the Civil Procedure Rules.
2. Waiting for call-in or another remedy. Judicial review is ordinarily a remedy of last resort. Waiting for a reasonable alternative route may support an extension of time, and an apparently premature application may be stayed or adjourned. That possibility is fact-sensitive. Here, the applicants had proceeded on an incorrect legal basis, gave no timely warning of a possible challenge, and offered no satisfactory explanation for the delay. Those circumstances justified refusing an extension.
3. Promptness. The three-month period is not replaced by a rigid six-week rule. Six weeks may be sufficient, insufficient or excessive, depending on the circumstances. The six-week period under Town and Country Planning Act 1990 section 288 is no more than a touchstone.
4. Prejudice and administration. Developer expenditure may evidence prejudice but is unlikely by itself to be decisive. Courts should not encourage increased expenditure before formal permission as a means of resisting judicial review. The interests of good administration cannot ordinarily justify upholding administration which may be unlawful. Prejudice and good administration may corroborate the conclusion on delay or help assess promptness, but are not freestanding grounds on the facts of this case.
5. Statutory delay provisions. Section 31(6) and (7) of the Supreme Court Act 1981 preserve a parallelism between statute and the rules. In the usual case the court should apply the governing rule and the established case-law principles, turning to section 31(6) only where the Act and the rule could produce different outcomes.

The appeal was dismissed because the refusal of permission was justified by the applicants’ delay and the absence of a good reason for extending time.

• Court of Appeal (Civil Division): dismissed the appeal from Richards J’s refusal of permission to apply for judicial review, holding that the refusal was not vitiated by legal or principled error.
• Queen’s Bench Division (Crown Office List): Richards J refused permission on 29 June 2000 because of delay, while accepting that the proposed grounds were arguable.
• Queen’s Bench Division: Newman J had earlier dismissed the application on the papers.