“To live outside the law, you must be honest”
(Bob Dylan)
This blog post covers:
⁃ the principles to be applied in relation to bringing a late claim for judicial review
⁃ the Environmental Audit Committee’s scrutiny of the enforcement and JR aspects of the draft Environment (Principles and Governance) Bill
⁃ The Supreme Court’s ruling on legislative provisions that seek to exclude the right to legal challenge.
Exciting, not?
Late JR claims
My 7 April 2018 blog post Fawlty Powers: When Is A Permission Safe From Judicial Review? looked at the whole question of JR time limits and referred to the High Court’s ruling in the Thornton Manor case, where the court allowed a claimant to bring a claim for judicial review more than five and a half years after the decision complained of.
That ruling has now been upheld in R (Thornton Hall Hotel Limited) v Wirral MBC (Court of Appeal, 30 April 2019).
Do read my previous blog post, or more reliably the judgment itself, for an account of the exceptional facts with which the court was faced. In deciding whether the judge was wrong to extend time for the claim to be brought, the Court of Appeal helpfully set out the principles to be applied:
“(1) When a grant of planning permission is challenged by a claim for judicial review, the importance of the claimant acting promptly is accentuated. The claimant must proceed with the “greatest possible celerity” – because a landowner is entitled to rely on a planning permission granted by a local planning authority exercising its statutory functions in the public interest.”
“(2) When faced with an application to extend time for the bringing of a claim, the court will seek to strike a fair balance between the interests of the developer and the public interest (see Sales L.J. in Gerber, at paragraph 46). Where third parties have had a fair opportunity to become aware of, and object to, a proposed development – as would have been so through the procedure for notification under the Town and Country Planning (General Development Management Procedure) Order 2010 (“the 2010 Order”) – objectors aggrieved by the grant of planning permission may reasonably be expected to move swiftly to challenge its lawfulness before the court. Landowners may be expected to be reasonably alert to proposals for development in the locality that may affect them. When “proper notice” of an application for planning permission has been given, extending time for a legal challenge to be brought “simply because an objector did not notice what was happening” would not be appropriate. To extend time in such a case “so that a legal objection could be mounted by someone who happened to remain unaware of what was going on until many months later would unfairly prejudice the interests of a developer who wishes to rely upon a planning permission which appears to have been lawfully granted for the development of his land and who has prudently waited for a period before commencing work to implement the permission to ensure that no legal challenge is likely to be forthcoming …” (see Sales L.J. in Gerber, at paragraph 49). When planning permission has been granted, prompt legal action will be required if its lawfulness is to be challenged, “unless very special reasons can be shown ...””
“(3) Developers are generally entitled to rely on a grant of planning permission as valid and lawful unless a court has decided otherwise (see Sales L.J. in Gerber, at paragraph 55). A developer is not generally required “to monitor the lawfulness of the steps taken by a local planning authority at each stage of its consideration of a planning application””.
“(4) What is required to satisfy the requirement of promptness “will vary from case to case”, and “depends on all the relevant circumstances”. If there is a “strong case for saying that the permission was ultra vires”, the court “might in the circumstances be willing to grant permission to proceed”, but “given the delay, it requires a much clearer-cut case than would otherwise have been necessary” (see Keene L.J. in Finn-Kelcey, at paragraphs 25 to 29).”
“(5) The court will not generally exercise its discretion to extend time on the basis of legal advice that the claimant might or should have received.”
“(6) Once the court has decided that an extension of time for issuing a claim is justified and has granted it, the question cannot be re-opened when the claim itself is heard.”
“(7) The court’s discretion under section 31(6)(b) requires an assessment of all relevant considerations, including the extent of hardship or prejudice likely to be suffered by the landowner or developer if relief is granted, compared with the hardship or prejudice to the claimant if relief is refused, and the extent of detriment to good administration if relief is granted, compared with the detriment to good administration resulting from letting a public wrong go unremedied if relief is refused…8) It being a matter of judicial discretion, this court will not interfere with the first instance judge’s decision unless it is flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the judge’s conclusion is clearly wrong and beyond the scope of legitimate judgment
“(8) It being a matter of judicial discretion, this court will not interfere with the first instance judge’s decision unless it is flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the judge’s conclusion is clearly wrong and beyond the scope of legitimate judgment”
Applying these principles:
“The extension of time sought in this case – an extension of more than five years from the date of the challenged decision – is, to use the judge’s word, “extreme”. That is undeniable. As the authorities show, it would only be in the most unusual circumstances that such an extension would ever be granted (see, for example, Schiemann L.J. in Corbett, at paragraph 14; and Hobhouse L.J. in ex p. Oxby, at pp.294 to 296 and 302 to 303). It is, in our view, very important to emphasise this. One cannot say, however, that the court’s power to extend time is automatically extinguished after any given period has elapsed. We are concerned here with a judicial discretion, not a fixed statutory limitation. A clear theme in the relevant case law, as one would expect, is that in every case where delay has occurred the court must look closely at all the relevant facts in the round. The facts will vary widely from case to case. In Corbett a total delay of six years was not in itself fatal to the granting of relief, but it was held that there was no longer a need to quash the planning permissions because they had in the meantime been modified by an order under section 100 of the 1990 Act, made by the Secretary of State, and a quashing order would deny the landowners the compensation due to them for the modification. In ex p. Oxby this court granted relief after a delay of about two years, during which the existence and facts of the unlawfulness infecting the local planning authority’s decision emerged. Generally, of course, very late challenges will not be entertained. However, as Sales L.J. said in Gerber (at paragraph 49), in a particular case there may be “special reasons” to justify the extension sought. To say, as this court did in Connors (at paragraph 87), that an exercise of judicial discretion to allow “very late challenges” to proceed in planning cases will “rarely be appropriate” implies that sometimes it may be appropriate – and necessary in the interests of justice.
There can be no doubt that the circumstances of this case, viewed as a whole, are extremely unusual. Indeed, we would go further. They are unique. The question for us, however, is whether, in combination, they can properly be said to amount to an exceptional case for extending time to allow the challenge to be brought before the court. In our view, in agreement with the judge, they clearly can.”
Factors in this case:
“The first point to be made, and a crucial one, is that the scope of the proceedings in this case is not the usual scope of a claim for judicial review in the planning context. As Mr Alan Evans for the council accepted, and as the judge recognised, it is beyond dispute that the planning permission under challenge ought not to have been issued without its conditions. It was issued in that form without lawful authority.
“This is not a case […] in which the practical effect of the unlawfulness was immediate upon the grant of planning permission.”
“We accept, as all three parties submit, that the council acted unlawfully in concealing its error. It initially attempted to put matters right by generating a fictitious decision notice and manipulating the planning register. Whether its intention was to reverse its error or to obscure it, the effect of the action it took was only to disguise what it had in fact done. It has not, however, resisted the claim. It could, of course, have done a good deal more than it has. It might, for example, have made use of its statutory power of revocation under section 97 of the 1990 Act, or its power to make a discontinuance order under section 102 – though this could have given rise to a claim for compensation by Thornton Holdings. It might have been able to deploy its powers of enforcement at an appropriate stage. It might have brought the matter before the court itself by a timely claim for judicial review issued in the name of a councillor – as was done, for example, in ex p. Oxby. It did none of those things, and even now it shows no such inclination. However, it now acknowledges that the decision notice it issued on 20 December 2011 was, and remains, clearly invalid. Far from resisting the challenge, or adopting a neutral stance, it has actively supported the claim, urged the judge to quash the planning permission, and has appeared in this court to resist the appeal. That is another highly abnormal feature of these proceedings.”
“It is also, we think, a factor of considerable weight in this case that Thornton Holdings were well aware from the outset that the planning permission had been wrongly issued, and knew precisely what the council’s error had been.”
“In the circumstances, contrary to the argument presented to us by Mr Christopher Lockhart- Mummery Q.C. for Thornton Holdings, we cannot accept that they have suffered any material hardship or prejudice as a result of the delay in the claim being issued. Indeed, if anything, the delay worked in their favour, in the sense that it enabled them to take advantage of an unrestricted grant of planning permission that they knew the council had never resolved to grant. That too is a most unusual feature of this case, in sharp distinction to others – such as Finn-Kelcey, Gerber and Connors – where the court has rejected lengthy extensions of time. The reality is that, from December 2011 until the judge’s order, Thornton Holdings had the benefit of a more generous grant of planning permission than would have been so if the council had not mistakenly issued the decision notice it did. If at any stage they were concerned about the risk of the council’s error being discovered and a claim for judicial review being made, they decided to operate in the knowledge of that risk, and in spite of it.”
The late claim was allowed. But the court has set out its reasoning carefully, such that I cannot see that the ruling will in any way open the floodgates to a greater risk of late, unexpected, challenges.
OEP JRs
My 22 December 2018 blog post The Office For Environmental Protection covered DEFRA’s draft Environment (Principles and Governance Bill) and in particular the proposal in the draft Bill that the Office for Environmental Protection once established could bring judicial reviews in its own right, outside usual judicial review timescales.
The House of Commons Environmental Audit Committee has now published its report on its pre-legislative scrutiny of the draft Bill (25 April 2019). On the proposed judicial review procedure there is this passage in relation to the OEP’s proposed enforcement powers, including potential to seek judicial review:
“The UK Environmental Law Association (UKELA) told us the proposed notice procedures are very slow, with two-month time periods for response. It said that if a breach is serious or ongoing, this could be too long a delay before court action can be taken by the OEP. Tim Buley agreed that since the time limit for judicial review is very strict, “three months ordinarily, six weeks in some environmental contexts”, it would not be appropriate to have it at the end of the process while the OEP has been conducting its investigation and the harm may have already happened. UKELA supported the OEP having a power to make an emergency application for judicial review and Tim Buley said the OEP should have the ability to bring a judicial review at the start of the process. Professor Macrory outlined that it would be helpful for the OEP to have an additional power to be able to intervene in environmental judicial reviews undertaken by other parties. He said that the Equality and Human Rights Commission (EHRC) which has such powers under Equality Act 2006, has made very effective use of them.”
The Committee recommended as follows:
“We recommend that:
•The Bill should allow the Office for Environmental Protection to bring a judicial review at the start of the process in rare cases where a delay could cause further environmental harm.
•The Bill should specify that the Office for Environmental Protection bringing enforcement proceedings does not prevent others who wish to bring a judicial review.
•The Office for Environmental Protection should be given the power to act as an intervener in environmental judicial reviews undertaken by other parties.
•Clauses 22 and 23 should be amended to include an obligation on the Office for Environmental Protection to act on responses to information or decision notices, or to explain to the complainant why no further action has been taken. This would provide a ratcheting approach to enforcement.
Overall, the enforcement procedure lacks imagination and the Government must consider alternative mechanisms. We have heard compelling evidence that there should be an expanded role for the First-tier Tribunal. This would help to resolve more cases before the need to apply for judicial review.
We recommend the Government looks further into a bespoke enforcement procedure and an expansion of the role and remit of the General Regulatory Chamber in the First-tier Tribunal. For example, where the Office for Environmental Protection is able to issue notices (at first advisory, then latterly binding) with a range of compliance recommendations, to which the public authority must then comply, or set out proportionate reasons why not. The Office for Environmental Protection would then be able to challenge a decision not to comply with the notice at the tribunal. The tribunal would undertake a substantive review of the authority’s decision not to comply with the notice. Any failure to comply with a decision should amount to contempt and be referable to the Upper Tribunal. Section 202 of the Data Protection Act 2018 provides a useful guide as to how this could be achieved in the legislation.”
Ouster clauses
Finally, superficially away from planning law but very relevant to bear in mind for any future re-framing of the system, the Supreme Court handed down judgment last week in R (Privacy International) v Investigatory Powers Tribunal (Supreme Court, 15 May 2019), a significant public law case as the legal effectiveness (or not) of “ouster” clauses in legislation, which seek to limit or remove rights to challenge in the courts matters carried out pursuant to the particular legislation. The strict six week time limit in judicial review in relation to decisions made pursuant to town and country planning legislation is of course a limitation. Such limitations have been held to be reasonable and permissible, as opposed to outright exclusions – held not to be legally effective by a 3 – 2 majority in the House of Lords in the 1968 Anisminic v Foreign Compensation Commission case.
The Privacy International case concerned the legal effectiveness or not of Parliament’s attempt in legislation to prevent legal challenges to decisions of the tribunal which hears complaints about, amongst other matters, general warrants granted to government agencies to intercept electronic communications.
“The Investigatory Powers Tribunal (“IPT”) is a special tribunal established under the Regulation of Investigatory Powers Act 2000 (“RIPA”) with jurisdiction to examine, among other things, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (“the intelligence services”). Section 67(8) provides:
“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.””
“There is an obvious parallel with the “ouster clause” considered by the House of Lords in the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (“Anisminic”). Section 4(4) of the Foreign Compensation Act 1950 provided:
“The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.””
In the course of lengthy discussion in the judgments as to the extent of the courts’ power to override legislative limitations as to legal challenge, the planning system gets a quick specific mention:
“...the courts have not adopted a uniform approach, but have felt free to adapt or limit the scope and form of judicial review, so as to ensure respect on the one hand for the particular statutory context and the inferred intention of the legislature, and on the other for the fundamental principles of the rule of law, and to find an appropriate balance between the two. Even if this was not always the way in which the decisions were justified at the time, it may be seen as providing a sounder conceptual basis. Thus in the planning cases, it having been accepted that the statutory grounds cover all the traditional ground of judicial review, there is no difficulty in holding that the six-week time-limit provides a proportionate balance between effective judicial review, and the need for certainty to enable such decisions to be acted on with confidence.”
The Supreme Court held by a 4 – 3 majority that the absolute prohibition on legal challenge in the Regulation of Investigatory Powers Act was not legally effective.
No doubt a blow to any future governments looking to sidestep the undoubted inconvenience to their activities that judicial review represents. But fundamentally important for all of us who worry how tempting it would be for the courts’ role as a check on the unjustified use of state power, to be neutralised in various areas of legislation.
Interesting to see that the Policy Exchange think tank, with its free market views on the planning system, popped up to denigrate the Supreme Court for allowing the appeal:
“Professor Richard Ekins, head of thinktank Policy Exchange’s Judicial Power Project, said the ruling ‘undermines the rule of law and violates the sovereignty of parliament’. He said: ‘A majority of the court has chosen to misinterpret an ouster clause – the statutory provision which expressly limits the High Court’s jurisdiction to review decisions of the Investigatory Powers Tribunal. Parliament chose to limit judicial review by creating a specialist tribunal to consider complaints against the intelligence services. It is not the Supreme Court’s place to unravel this choice.'” (Law Society Gazette, 15 May 2019).
You don’t need a weatherman to know which way the wind blows.
Simon Ricketts, 18 May 2019
Personal views, et cetera
Pic courtesy Bob Dylan
SIMONICITY 