Regina v London Borough of Hammersmith and Fulham, Ex p Burkett

For judicial review of a grant of planning permission, the three-month period begins when permission is granted, not when the authority adopts a conditional resolution authorising a future grant. The ability to challenge the preliminary resolution does not compel an objector to do so or preclude a timely challenge to the eventual grant. The procedural rule should provide a clear and readily ascertainable starting date, particularly because its operation may extinguish the right to challenge unlawful public action.

The House may hear a further appeal where the Court of Appeal granted permission to appeal and determined an appeal against refusal of permission for judicial review. The statutory three-month maximum cannot be reduced to six weeks by judicial policy. Whether the additional requirement to act promptly is sufficiently certain under European law was left unresolved.

The local planning authority resolved to authorise outline planning permission for a major development, subject to the Secretary of State not calling in the application and completion of a section 106 agreement. The applicants, who lived beside the site, sought judicial review of the resolution more than six months later. Planning permission was granted while their application was pending.

Richards J considered the substantive grounds arguable but refused permission because the application had not been made within three months of the resolution. The Court of Appeal dismissed the appeal in [2001] JPL 775, holding that the grounds first arose when the resolution was adopted.

On the applicants' proposed amendment challenging the grant itself, the central issue was whether time began with the conditional resolution or the eventual grant of permission. The House also considered whether it had jurisdiction to hear a further appeal from the Court of Appeal's refusal of permission for judicial review.

1. Appeal allowed unanimously. Lord Steyn delivered the leading speech. Lord Slynn agreed with his reasons and added brief observations. Lord Hope agreed, subject to additional observations on jurisdiction and promptitude. Lord Millett and Lord Phillips agreed with Lord Slynn and Lord Steyn.

2. Per Lord Steyn and Lord Slynn, the three-month period under Order 53 rule 4(1) of the Rules of the Supreme Court began, for a challenge to the grant of planning permission, on the date of the grant. The corresponding rule 54.5(1) of the Civil Procedure Rules was materially identical. The earlier resolution created no rights or obligations. It remained revocable and depended on two unfulfilled conditions, including completion of the section 106 agreement.

   A preliminary resolution could itself be challenged, but that possibility did not require an objector to litigate before the final decision. A failure to challenge the resolution in time therefore did not extinguish the right to challenge the eventual grant. A rule capable of barring review of unlawful public action should be interpreted to give citizens, authorities and developers a clear and predictable starting date.

3. Per Lord Steyn, public law emphasises substance over form. Because the application preceded the grant, its original identification of the resolution as the challenged decision could be cured by amendment. The applicants could amend their claim to challenge the later grant and obtain consequential amendments.

4. On jurisdiction, the House held that it could entertain the appeal because the Court of Appeal had granted permission to appeal from the judge and had heard that appeal. The broader observation in In re Poh [1983] 1 WLR 2 suggesting otherwise was incorrect and was disapproved. The principle in Lane v Esdaile [1891] AC 210 concerned a statutory authority's final decision to grant or refuse leave to appeal. It did not prevent a further appeal in the present procedural circumstances.

5. Lord Steyn observed that the three-month statutory maximum could not be reduced to a six-week period by judicial policy. He and Lord Hope expressed doubt about whether the additional requirement to act promptly was sufficiently certain under European law, but the point did not arise for decision. Lord Hope separately considered that acquiescence and prejudice could provide workable criteria for controlling undue delay. The substantive judicial-review grounds were remitted to the High Court for determination.

• House of Lords: In [2002] UKHL 23, unanimously allowed the appeal, permitted the challenge to be amended to address the grant of planning permission, and remitted the substantive issues to the High Court.
• Court of Appeal: In [2001] JPL 775, dismissed the appeal and refused permission for judicial review because the three-month period was held to run from the local authority's resolution.
• High Court: Richards J treated the substantive grounds as arguable but refused permission because of delay. Newman J had earlier refused permission on the papers on delay and merits.