Ellaway, R (on the application of) v Cardiff County Council & Anor

At the permission stage of judicial review, a claim should proceed where a substantial legal issue is arguable, even though the claimant may face serious difficulties on delay, discretionary relief, hardship or good administration. In planning cases, the Whitley principle and its recognised exceptions must be applied with regard to the statutory purpose; whether retrospective approval of details under pre-commencement conditions impermissibly extended an exception was arguable. The court cannot compel a planning authority to exercise its enforcement discretion in a particular way. A screening assessment which concludes that no likely significant effect exists does not trigger the obligation to undertake an appropriate assessment or consult the public under regulation 61(4).

The claimant sought permission to challenge Cardiff County Council’s decisions concerning an energy-from-waste development. The challenge concerned retrospective approval of details required by pre-commencement conditions, the council’s decision not to take enforcement action, and alleged failures under the Habitats Directive.

Works had begun before the required approvals were obtained. The council later completed the environmental impact assessment procedure, approved the details, and decided that enforcement action was not expedient. A single High Court judge refused permission on the papers. On renewal, the central issues were whether the retrospective approvals were legally arguable, whether the claim was out of time, whether relief could properly be granted, and whether an appropriate assessment was required.

1. Permission. The court granted permission on the first three grounds and refused permission on the Habitats Directive ground. Permission was also refused for a mandatory order requiring the council to issue an enforcement notice.
2. The ordinary permission test is whether the claim is wholly lacking in merit or unarguable, broadly corresponding to whether there is no real prospect of success. The court had considerable reservations about the first three grounds, but the contention that the council’s procedure impermissibly extended or added to an established exception to the Whitley principle was arguable.
3. The Whitley principle treats operations carried out in breach of planning conditions as a breach of planning control. The judgment recognised the argument that, exceptionally, later approval may regularise works where the relevant details were applied for before expiry, the works comply with those details, and approval is subsequently granted. Whether that exception applied to the present circumstances could not be dismissed as unarguable at the permission stage.
4. Delay, hardship, prejudice and detriment to good administration were reserved for the substantive hearing. Promptness is required independently of the three-month period, and a continuing breach does not necessarily prevent the court considering when it began. The grant of permission did not itself extend time.
5. The court could not substitute its own discretion for the council’s statutory discretion on enforcement. Although limited declaratory relief might theoretically be available if a significant procedural irregularity were established, the court could not compel the issue of an enforcement notice.
6. The fourth ground was unarguable. The material assessment was, on its face and in substance, only a screening assessment. Since it found no likely significant effect, no obligation arose to undertake an appropriate assessment, consult the public, or give reasons for not doing so.

The claim was directed to an expedited substantive hearing before a judge with specialist planning experience.

High Court (Administrative Court): A single judge refused permission on the papers on 1 May 2013. On renewal, permission was granted for the first three grounds, refused for the Habitats Directive ground, and refused for a mandatory enforcement order. The issues of delay and discretionary relief were reserved for the substantive hearing.