Gavin, R (on the application of) v Wolseley Centers Ltd.

In judicial review, an application made more than three months after the relevant decision involves undue delay, even where the court considers that there is a good reason for extending time. The court must then consider whether prejudice to another person or detriment to good administration should nevertheless defeat permission or relief.

At the permission stage, the court should balance the competing injustices. A claimant should not ordinarily be shut out where delay resulted substantially from lack of awareness caused by defective notification, particularly where the challenge raises wider public concerns such as environmental assessment. The likelihood that final relief may prove difficult does not necessarily justify refusing permission.

The claimant owned property near a development for which the defendant local authority granted planning permission to the interested party. He challenged the permission approximately 32 months later, alleging failures concerning environmental impact assessment and statutory notification, including local newspaper advertising and a site notice.

The claimant said he had not learned of the permission until April 2003, after receiving inaccurate information from the authority. The court considered whether the delay was undue, whether there was a reasonable explanation, and whether prejudice to the developer or the interests of good administration required permission to be refused.

1. Permission granted. The court applied the approach stated in the Caswell case, [1990] 2 AC 738. Delay exceeding three months was undue delay. The court had to consider separately whether there was a reasonable explanation and, even if there was, whether prejudice or detriment to good administration justified refusing permission or relief.
2. The claimant’s delay was reasonably explained. He had not known that permission had been granted until 7 April 2003. The investigation and preparation undertaken thereafter were not dilatory, although the claimant was required to act speedily.
3. There was real potential prejudice to the developer. Development had begun and substantial expenditure and commercial uncertainty were involved. The court also recognised the importance of finality in planning decisions.
4. Those considerations did not justify shutting out the claim at the permission stage. The claimant’s lack of awareness was at least partly attributable to the authority’s failure to advertise properly. The alleged failure to consider whether an environmental impact statement was required raised wider public concerns and could affect the opportunity for representations and mitigation.
5. The court considered that it would be difficult for the claimant ultimately to obtain an order quashing the permission, given the steps already taken, but that outcome was not inevitable. The claimant should therefore have the opportunity to present the substantive challenge.
6. The claimant was awarded his additional costs wholly attributable to the oral permission hearing as costs in the case. No order was made requiring the defendants or interested party to pay their own costs of appearing at that hearing. Expedition towards the beginning of the Michaelmas sittings was suggested.

This was a first-instance application for permission for judicial review. Goldring J had directed an oral hearing, at which the local authority and interested party were entitled to attend.