Finn-Kelcey v Milton Keynes Council & Anor

A judicial review claim must be filed both promptly and within three months. Filing within three months does not itself satisfy the separate requirement of promptness. Planning challenges ordinarily demand particular speed, although there is no judicially created six-week limitation period.

Environmental information may be made available electronically and kept separately from a planning file, provided interested members of the public are adequately informed of its existence and availability. A court cannot remedy late implementation of a directive by rewriting domestic regulations contrary to their express commencement provision; any remedy lies in the directive’s direct effect.

A local landowner appealed against Collins J’s refusal of permission to seek judicial review of a local planning authority’s grant of permission for a seven-turbine windfarm. The judge refused permission both for want of promptness under rule 54.5(1) of the Civil Procedure Rules 1998 and because the proposed claim lacked merit.

The claimant alleged that raw wind-speed data had not been made available as required by domestic environmental information legislation and European directives. He also contended that the authority’s published reasons were ambiguous. The central questions were whether the claim had been brought promptly, whether the applicable environmental information requirements had been breached, and whether the authority’s reasons were adequate.

1. Appeal dismissed. The claim, filed just within three months of the formal grant of planning permission, had not been filed promptly as separately required by rule 54.5(1) of the Civil Procedure Rules 1998. Promptness depends upon all the circumstances. Knowledge of an earlier resolution to grant permission may be relevant even though the three-month period begins only upon the formal grant. Here the claimant knew of both the committee’s resolution and the full council’s refusal to rescind it, yet provided no express explanation for the subsequent delay.
2. There is no judicially created six-week rule for judicial review challenges to planning permission. The statutory six-week limit applicable to certain ministerial planning decisions cannot replace the three-month limit fixed by the procedural rules. It may nevertheless be relevant to promptness because it reflects the need for swift challenges to planning permissions. That need was particularly acute in the policy context of renewable-energy development.
3. Delay did not necessarily end the matter. A sufficiently clear case that the permission was unlawful might have justified allowing the claim to proceed in the public interest. Given the unexplained delay, however, a substantially clearer case was required than would otherwise have been necessary.
4. The Town and Country Planning (Environmental Impact Assessment) (Amendment) Regulations 2006 did not apply because the planning application preceded their commencement. Their express transitional provision could not be rewritten to make them effective from the earlier deadline for implementing Directive 2003/35/EC. Any consequence of late implementation arose through the directive’s direct effect.
5. There was no breach of regulation 19 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The wind data was supplied in response to a non-regulatory request, rather than a notification under regulation 19(1), and therefore was not “further information” governed by regulation 19.
6. The data had been made available as required by regulation 5 of the Environmental Information Regulations 2004 and article 6(3) of Directive 85/337/EEC. Technical information may be retained electronically and separately from the traditional planning file, provided the file sufficiently indicates its existence and availability. The supplementary environmental information stated that the raw data was available electronically or on request, and nobody acting for the claimant requested it.
7. The authority’s reasons were adequate. Planning reasons need not possess the precision of parliamentary drafting. Read fairly, they stated that the proposal would have no materially detrimental impact on the identified planning interests.

Keene LJ delivered the judgment. Thomas and Hughes LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2008] EWCA Civ 1067. The court upheld the refusal of permission because the claim was not prompt and lacked substantive merit, although part of its reasoning differed from that of Collins J.
2. High Court, Administrative Court: Collins J refused permission to seek judicial review after a rolled-up hearing. He relied both on want of promptness and lack of substantive merit. The judgment proceeded on the mistaken basis that the later amendment regulations applied to the planning application.