Regina v London Borough of Hammersmith and Fulham (Ex parte Burkett and another)

This appeal concerned the point at which the time limit for seeking judicial review begins to run in relation to planning decisions under RSC Ord 53 r 4(1) (now CPR r 54.5(1)). The court held that where the challenge is to the grant of planning permission, the three month time limit runs from the date when planning permission is actually granted, not from an earlier committee resolution which was subject to conditions precedent (such as completion of a section 106 agreement or a Secretary of State call-in decision). The House also rejected a preliminary submission that it lacked jurisdiction to hear an appeal in circumstances where the Court of Appeal had granted and heard the appeal, and permitted amendment of the pleadings to make the challenge run to the grant rather than to the earlier resolution.

This case arises from a large outline planning application for redevelopment at Imperial Wharf, Fulham. The applicants (Mrs Burkett and her late husband) sought permission to apply for judicial review, originally challenging the planning committee's resolution of 15 September 1999 to grant outline permission on the ground that the environmental statement was inadequate and that the planning process had been unlawful. The application for permission was made on 6 April 2000; formal grant of planning permission followed on 12 May 2000 after completion of an extensive section 106 agreement.

Nature of the application:

• The applicants sought leave to apply for judicial review and ultimately relief in the form of certiorari to quash the planning decision (the resolution and, as amended, the subsequent grant of planning permission).

Procedural posture: The High Court refused permission on grounds of delay; Richards J refused permission on delay; the Court of Appeal dismissed the appeal (holding time ran from the date of the resolution); an Appeal Committee of the House of Lords granted leave to appeal.

Issues framed:

• Whether, for the purpose of the three month limitation in RSC Ord 53 r 4(1) (now CPR r 54.5(1)), time runs from the date of the planning committee's resolution or from the later date when planning permission is formally granted.
• Whether the House had jurisdiction to hear the appeal given prior authorities (notably In re Poh) suggesting limits on appeals from refusals of leave to apply for judicial review.
• Related questions of promptitude, the court's discretion under section 31(6) of the Supreme Court Act 1981, and any interaction with European environmental law obligations.

Court’s reasoning:

• The House emphasised substance over form and the particular legal character of a committee resolution: the resolution was conditional and inchoate and created no enforceable legal rights until the conditions precedent were satisfied (notably the Secretary of State's decision not to call in and the completion of the section 106 agreement).
• On interpretation of the words "from the date when the grounds for the application first arose" the court concluded that, for a challenge to the grant itself, the natural and contextually preferable starting point is the date when rights and obligations actually arise—i.e. the date of grant—because that yields certainty and avoids retrospective, uncertain inquiries into when the "real basis" of the complaint emerged.
• The House rejected the narrower procedural objection to its jurisdiction where the Court of Appeal had granted leave and heard the appeal, and considered that In re Poh should not be applied to block this appeal in the present circumstances.
• The court observed that European law and Convention issues did not need to be decided given its domestic-law conclusion, and remitted the substantive merits for decision by the High Court.

This was an appeal allowed. The House held that where the judicial review challenge is to the grant of planning permission, the three month time limit runs from the date the planning permission is granted (here 12 May 2000), not from the earlier committee resolution (15 September 1999); accordingly the refusals below on the grounds of delay were incorrect. The House also held that it had jurisdiction to hear the appeal in the circumstances where the Court of Appeal had granted and heard the appeal. The matter was remitted to the High Court for determination on the substantive issues.

At first instance applications for permission to apply for judicial review were refused (Newman J refused on the papers, then Richards J refused on grounds of delay). The Court of Appeal (Ward, Sedley and Jonathan Parker LJJ) dismissed the appeal and concluded that time ran from the committee resolution (judgment reported [2001] JPL 775). An Appeal Committee of the House of Lords granted leave to appeal, and the House allowed the appeal on 23 May 2002.