Gerber, R (on the application of) v Wiltshire Council & Ors

An objector seeking judicial review of a planning permission must act with the greatest possible celerity. Where the statutory notification requirements were satisfied, an objector’s failure to notice the application will not ordinarily justify extending time. Prompt action remains essential unless very special reasons exist.

Reliance on legal advice, a change of legal representation or the pursuit of non-legal complaints will not usually justify delay. Under section 31(6) of the Senior Courts Act 1981, the court must evaluate third-party hardship, prejudice to the claimant and both sides of the interest in good administration. Significant unexplained delay, detrimental reliance and the need for finality may justify refusing relief despite established public law errors. EU environmental law does not displace the ordinary operation of domestic time limits and remedial discretion where an effective opportunity to challenge existed.

The Council granted planning permission for a solar farm near a Grade II* listed building owned by the respondent. Although the statutory notification requirements were satisfied, the respondent did not learn of the permission until construction began about nine months later. He then pursued complaints and obtained legal advice but did not commence judicial review proceedings for a further five months.

Dove J extended time and quashed the permission. He found four public law errors, including failures concerning listed-building protection, consultation with English Heritage and environmental impact assessment. He also held that the Council’s Statement of Community Involvement created a legitimate expectation that the respondent would receive individual notification.

The Council and developers appealed against the legitimate-expectation ruling, the extension of time and the grant of relief. They did not challenge three of the substantive findings of unlawfulness. The central issues were whether the delay was reasonably explained and whether relief should be refused because of hardship, prejudice and detriment to good administration.

1. Appeal allowed unanimously. The Statement of Community Involvement contained no clear and unambiguous promise that every affected neighbour would receive individual notification. Its definitive policy concerned occupiers of adjoining premises, and the respondent’s property did not adjoin the site. The more general wording in an appendix could not enlarge that policy. The legitimate-expectation ground therefore failed.

2. The judge should not have extended time under Part 54.5 of the Civil Procedure Rules 1998. Planning objectors must act with the greatest possible celerity because landowners and developers are entitled to rely on planning permissions and may invest substantial resources in their implementation. Compliance with article 13 of the Town and Country Planning (Development Management Procedure) Order 2010 ordinarily gives potential objectors a fair opportunity to learn of a proposal. A person’s failure to notice compliant publicity does not itself justify an extension. Very special reasons are required to excuse an otherwise late challenge.

3. Reliance on legal advice did not reasonably explain the later delay. Save where exceptional circumstances and other factors arise, an objector remains responsible for deciding whether to commence proceedings. Legal professional privilege, the interests of developers who cannot know of private advice, and the availability of a possible claim against negligent advisers reinforce that principle. A change of lawyers, a different legal opinion or the pursuit of maladministration complaints does not suspend the need for prompt proceedings.

4. Under section 31(6) of the Senior Courts Act 1981, the court must make an overall evaluative assessment. Relevant matters include the hardship or prejudice to third parties if relief is granted, the prejudice to the claimant if it is refused, and the competing effects upon good administration. The reasons for and length of the delay affect the weight given to detrimental reliance and cannot be separated from the remedial assessment.

5. Had it been necessary to reconsider relief, the planning permission would not have been quashed. The long unexplained delay, the developers’ major financial exposure, the comparatively limited harm to the respondent, the need for reliable planning decisions and the investment requirements of renewable-energy projects outweighed the established legal errors. EU environmental requirements did not exclude the ordinary operation of section 31(6), because the respondent had enjoyed an effective opportunity to challenge the decision in time.

6. The extension of time and the quashing order were set aside. The planning permission accordingly remained valid.

1. Court of Appeal (Civil Division): The appeals were allowed. The extension of time and the order quashing the planning permission were set aside: [2016] EWCA Civ 84.

2. High Court, Administrative Court: Dove J extended time for the judicial review claim, upheld four grounds of challenge and quashed the planning permission. No neutral citation for that decision is stated in the judgment.